United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
V. HODGES UNITED STATES MAGISTRATE JUDGE.
appeal from a denial of social security benefits is before
the court for a Report and Recommendation
(“Report”) pursuant to Local Civ. Rule
73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action
pursuant to 42 U.S.C. § 405(g) to obtain judicial review
of the final decision of the Commissioner of Social Security
(“Commissioner”) denying her claim for Disability
Insurance Benefits (“DIB”). The two issues before
the court are whether the Commissioner's findings of fact
are supported by substantial evidence and whether she applied
the proper legal standards. For the reasons that follow, the
undersigned recommends the Commissioner's decision be
reversed and remanded for further proceedings as set forth
April 17, 2014, Plaintiff filed an application for DIB in
which she alleged her disability began on August 27, 2005.
Tr. at 279-82. Her application was denied initially and upon
reconsideration. Tr. at 183-86, 199-203, 205-09. On October
14, 2016, Plaintiff had a hearing before Administrative Law
Judge (“ALJ”) Brian Garves. Tr. at 81-129
(Hr'g Tr.). The ALJ issued an unfavorable decision on
November 28, 2016, finding Plaintiff was not disabled within
the meaning of the Act. Tr. at 54-80. Subsequently, the
Appeals Council denied Plaintiff's request for review,
making the ALJ's decision the final decision of the
Commissioner for purposes of judicial review. Tr. at
35-41. Thereafter, Plaintiff brought this action
seeking judicial review of the Commissioner's decision in
a complaint filed on July 18, 2018. [ECF No. 1].
Plaintiff's Background and Medical History
was 37 years old at the time of the hearing. Tr. at 119. She
obtained a dual degree in criminal justice administration and
sociology. Tr. at 117-18. Her past relevant work
(“PRW”) was as a deputy sheriff, a retail closing
manager, and a customer service banker. Tr. at 90-93. She
alleges she has been unable to work since August 27, 2005,
and described her original injury as occurring on October 4,
2004. Tr. at 90, 123-24.
October 4, 2004, Plaintiff presented to Lexington Medical
Center (“LMC”) with complaint of knee pain due to
twisting it at work that morning. Tr. at 362-69. A knee x-ray
showed a small joint effusion. Tr. at 368. Robert Mearns,
M.D. (“Dr. Mearns”), found knee effusion and
tenderness, placed Plaintiff in a knee immobilizer, assessed
sprained knee, prescribed Tylox, and instructed her to follow
up with orthopedics per her workers' compensation
provider. Tr. at 362.
October 8, 2004, Plaintiff presented to LMC Occupational
Health and reported she previously twisted her right knee
while chasing a burglary suspect in a parking lot. Tr. at
358-60. Plaintiff also reported she had been out of work as a
deputy sheriff since the incident, her knee felt like it
would “give way” when she tried to walk on it,
and her pain was 6.5/10. Tr. at 358. The attending nurse
found swelling over the knee's medial aspect, assessed
sprained left knee, prescribed medication, scheduled an MRI
to rule out internal derangement, noted an orthopedic
referral was likely, and opined Plaintiff could
“[r]eturn to work [with] sedentary restrictions.”
Tr. at 359-60.
October 12, 2004, a left knee magnetic resonance image
(“MRI”) reflected an anterior cruciate ligament
(“ACL”) tear, with an associated meniscal tear.
Tr. at 361.
October 15, 2004, Plaintiff presented to Frank K. Noojin,
M.D. (“Dr. Noojin”), at Moore Orthopaedic Clinic,
with complaints of left knee pain. Tr. at 424-28. Dr. Noojin
discussed Plaintiff's options and scheduled a left knee
arthroscopy with partial medial meniscectomy and ACL
reconstruction with patellar tendon autograft, noting it was
usually an outpatient procedure that allowed physical therapy
within a week of surgery. Tr. at 425.
October 19, 2004, Plaintiff presented to HealthSouth for
physical therapy and attended approximately 50 physical
therapy sessions from October 2004 to April 2005. Tr. at
429-40, 540-83, 467-600.
October 28, 2004, Plaintiff presented to Dr. Noojin and
reported she was “doing great.” Tr. at 421-23.
Dr. Noojin noted Plaintiff was scheduled for surgery and she
could do light duty, with no climbing, kneeling, squatting,
or crawling, until the surgery date if there was work
November 8, 2004, Dr. Noojin performed a left knee
arthroscopy with arthroscopic ACL reconstruction and
anticipated a six-month recovery process. Tr. at 372-74.
November 10, 2004, Plaintiff presented to Dr. Noojin for
follow up. Tr. at 419-20. Knee x-rays showed tunnels were in
good position. Id. Dr. Noojin kept Plaintiff out of
work and scheduled a follow up in two weeks. Id.
November 24, 2004, Plaintiff presented to Dr. Noojin, who
removed her sutures and noted the incision was healing
nicely. Tr. at 416-19. Dr. Noojin continued physical therapy
and kept Plaintiff out of work, but noted “[s]he could
do some light duty sedentary type work within a couple of
December 14, 2004, Plaintiff presented to physical therapy
and reported her knee was still sore. Tr. at 429, 438. The
therapist noted Plaintiff continued to progress well.
December 15, 2004, Plaintiff presented to Dr. Noojin, who
found Plaintiff had minimal effusion and her incision was
healing nicely and counseled Plaintiff to “continue to
work on extension.” Tr. at 415-16. Dr. Noojin noted
Plaintiff could “go back to work light duties,
sedentary duties only if available” and scheduled a
follow up in four weeks. Id.
January 21, 2005, Plaintiff presented to Dr. Noojin and
reported she was doing well. Tr. at 411-14. Dr. Noojin found
Plaintiff's gait was slightly antalgic and her knee was
minimally tender over the medial and lateral joint lines.
Id. Dr. Noojin noted Plaintiff had been working very
hard on her extension and continued her on light duty until
her appointment in six weeks. Id.
March 4, 2005, Plaintiff presented to Dr. Noojin and reported
her knee and back were “doing better.” Tr. at
409-10. Dr. Noojin noted, “[a]t this time she is almost
ready to go back to regular work[, ] but I think given all of
the road responsibilities she would be better off at light
duty for 4 more weeks at which time we anticipate return to
her regular job” and she continued physical therapy to
work on strength. Id.
April 15, 2005, Plaintiff presented to Dr. Noojin for follow
up and reported she was doing well. Tr. at 404-08. Dr. Noojin
found Plaintiff had symmetrical flexion, stable Lachman, and
no effusion, but some quadricep atrophy and “fairly
significant strength losses on the left compared to the
right, but she want[ed] to go back to work doing her regular
job.” Id. Dr. Noojin opined Plaintiff's
graft had healed nicely, continued physical therapy to build
strength in her legs, and “return[ed] her to her
regular job.” Id.
13, 2005, Plaintiff presented to Dr. Noojin and reported she
was “doing better, but she still ha[d] a lot of
pain.” Tr. at 400-03. Plaintiff also reported she had
returned to regular work, but pain in her back and knee due
to climbing a lot of stairs. Id. Dr. Noojin found
Plaintiff's gait was slightly antalgic and she had
positive apprehension, but stable bilateral knees, negative
straight leg raise (“SLR”) tests, and no effusion
and she was generally alert and oriented. Id. Dr.
Noojin compared Plaintiff's knee results from the prior
month, noted additional rehabilitation should help, and kept
her at regular work status. Id.
29, 2005, Plaintiff presented to Dr. Noojin with complaints
of continued knee and back pain. Tr. at 397. Plaintiff
reported she could not run without knee pain and had returned
to regular work, but had some difficulty. Id. Dr.
Noojin noted Plaintiff's gait was antalgic and her right
knee hyperextended, but she was alert, oriented, and
appropriate, had negative SLR tests, and appeared to be
neurovascularly intact bilaterally. Id. Dr. Noojin
assessed status-post ACL reconstruction and mechanical low
back pain and ordered lumbar spine and knee MRIs.
Id. Dr. Noojin returned Plaintiff to regular duties
at work. Tr. at 398.
9, 2005, a lumbar spine MRI reflected a small central
protrusion at L4-L5, with facet arthropathy, and a
hemitransverse articulation on the left at L5-S1 with partial
sacralization at L5, but no stenosis. Tr. at 370. A left knee
MRI showed intact ACL reconstruction, longitudinal tear
involving the posterior horn of the medial meniscus, and mild
arthrofibrosis extending along the infrapatellar plica. Tr.
at 371, 861.
18, 2005, Plaintiff presented to Dr. Noojin for follow up.
Tr. at 396-97. A lumbar spine MRI showed slight stenosis at
L4-L5 with no major disc herniations. Id. A left
knee MRI showed an intact ACL graft, but a peripheral tear of
the medial meniscus and a possible slight cyclops lesion that
may block her extension. Id. Dr. Noojin assessed
medial meniscus tear left knee with cyclops, recommended a
repeat arthroscopy for her knee, and referred her to W.
Alaric Van Dam, M.D. (“Dr. Van Dam”), for a
possible injection for her back. Id.
August 10, 2005, Dr. Van Dam administered a translaminar
epidural steroid injection (“ESI”). Tr. at
August 19, 2005, Plaintiff presented to Dr. Noojin and
reported some relief from her back pain, but continued knee
pain. Tr. at 392. Dr. Noojin assessed left knee pain with
questionable medial meniscus tear. Id. Dr. Noojin
scheduled a left knee arthroscopic intervention, but noted
Plaintiff would be kept “in her regular job.”
August 29, 2005, Dr. Noojin performed a left knee arthroscopy
with medial meniscus repair and medial plicectomy or
meniscectomy. Tr. at 390- 91, 660-77.
September 1, 2005, Plaintiff presented to Dr. Noojin and
reported some discomfort, but she was “doing
well.” Tr. at 389. Dr. Noojin noted the incision was
healing well, ordered physical therapy, and issued a work
September 9, 2005, Plaintiff started physical therapy at
HealthSouth and attended approximately 30 visits between
September 2005 and February 2006. Tr. at 503-39, 467-600.
September 22, 2005, Plaintiff presented to Dr. Noojin with
complaints of continued knee and back pain. Tr. at 387-89.
Dr. Noojin noted he thought Plaintiff's back pain was
related to her knee, continued therapy, prescribed a brace,
referred her to Dr. Van Dam for an injection, noted she would
likely be out of work for three more months, and issued a
work excuse. Id.
October 4, 2005, Dr. Van Dam administered a translaminar ESI.
Tr. at 385-86.
October 26, 2005, Plaintiff presented to Dr. Noojin with
complaints of continued back and knee pain and reported she
was “still having a hard time, ” despite two
injections. Tr. at 382-84. Dr. Noojin found medial and
lateral joint line and lumbosacral tenderness. Id.
Dr. Noojin noted Plaintiff's frustration, issued a work
excuse for at least six weeks, indicated she would be unable
to perform a functional evaluation due to her pain, continued
her therapy, and prescribed Naprosyn and Mepergan.
November 10, 2005, Dr. Noojin noted he was a physician at
Moore Orthopaedic Clinic, had treated Plaintiff for
work-related injuries that she sustained to her left-lower
extremity and back due to an accident on October 4, 2004, and
opined Plaintiff had reached maximum medical improvement
(“MMI”) for her lower extremity, but not her
back, which required additional treatment. Tr. at 381.
December 1, 2005, Plaintiff presented to Dr. Noojin with
complaints of low back and knee pain. Tr. at 379. Plaintiff
reported she did not receive “a lot of relief”
from an injection and was frustrated. Tr. at 379-80. Dr.
Noojin found left quadricep atrophy and a fairly antalgic
gait, but no knee effusion, full range of motion
(“ROM”), and negative SLR tests. Id. Dr.
Noojin noted, “At this point we have really done most
of what I know to do for her. We still can't return her
to work at this point.” Id. Dr. Noojin
provided additional exercises, scheduled a follow-up visit in
six weeks, and instructed Plaintiff to remain out of work.
December 7, 2005, Dr. Noojin met with Plaintiff's case
manager and noted they would keep Plaintiff in physical
therapy, but “keep her out of work as there is really
nothing she can do at this point” and she would seek a
second opinion Tr. at 378.
December 8, 2005, Plaintiff presented to Kevin Nahigian, M.D.
(“Dr. Nahigian”), at Carolina Shoulder and Knee
Specialists for a second medical opinion. Tr. at 693-94. Dr.
Nahigian explained “she ha[d] been handled very
appropriately, ” but “[t]his [was] an extremely
difficult problem in a young person.” Tr. at 693. Dr.
Nahigian assessed status-post left knee ACL reconstruction,
healed, and left knee medial joint line discomfort following
medial meniscal repair. Tr. at 712. Dr. Nahigian did not
“feel that additional conservative options [were]
great, ” administered an injection, and recommended a
knee arthroscopy if Plaintiff did not improve. Tr. at 692.
Dr. Nahigian continued Plaintiff's restrictions. Tr. at
January 24, 2006, Plaintiff presented to Dr. Noojin. Tr. at
375-77. Dr. Noojin noted Plaintiff had “really not
progressed, ” was “in therapy for a long time,
” and had obtained a second opinion and received a
Cortisone injection, but no relief. Tr. at 375. Dr. Noojin
found Plaintiff's gait was antalgic and assessed residual
left knee and low back pain. Id. Dr. Noojin noted,
At this point, regarding her knee, I think she has reached
[MMI] as far as nonoperative measures. Should she pursue
arthroscopy, I personally would not just look at the
meniscus. I would consider lateral release since this is the
third surgery. . . . Personally, having already looked at her
medial meniscus twice, I don't think the meniscus is the
problem. There was barely even a tear of the medial meniscus
at the initial surgery. When I repaired it at the second
surgery, there was only [a] 1 cm quite stable tear. I would
be very surprised if this has not in fact healed.
Tr. at 375. Dr. Noojin also noted he would keep Plaintiff out
of therapy and work with her current restrictions, would be
prepared to do a lateral release if the meniscus findings
were negative, and offered to send Plaintiff to Dr. Van Dam
for an opinion to determine whether her back pain was
secondary to abnormal gait mechanics. Tr. at 375-76.
February 3, 2006, a left knee x-ray reflected patella-femoral
chondrosis with possible medial meniscal repair, unhealed.
Tr. at 691-92.
February 6, 2006, Plaintiff presented to Dr. Nahigian, who
performed a left knee partial medial meniscectomy and left
knee lateral retinacular release. Tr. at 641-59.
February 21, 2006, Plaintiff presented to Dr. Nahigian and
reported she was consistently improving. Tr. at 691. Dr.
Nahigian assessed two weeks status-post left knee arthroscopy
for posterior horn tear of the medial meniscus and lateral
retinacular release, doing well. Id.
March 29, 2006, Plaintiff presented to Dr. Nahigian and
received an injection for continued knee pain. Tr. at 466,
640, 687. Dr. Nahigian assessed medial meniscus tear and
opined Plaintiff had the same restrictions. Id. Dr.
Nahigian referred Plaintiff to Todd S. Jarosz, M.D.
(“Dr. Jarosz”), for her back pain and noted
Plaintiff had been terminated from employment due to her
exhausted leave and so there was no rush to return her to
work, but continued the same restrictions. Id.
April 11, 2006, Plaintiff presented to Dr. Jarosz, with
complaints of back pain. Tr. at 638-39, 686, 688-90. Dr.
Jarosz performed an exam and referred Plaintiff to Steven B.
Storick, M.D. (“Dr. Storick”), for a bilateral
L4-L5 facet joint injection and possibly L5-S1 injections.
Id. Dr. Jarosz recommended Plaintiff begin a
physical therapy program to improve her pain and expressed
concern that she would continue to have pain until her gait
was normal. Id.
April 11, 2006, Plaintiff presented to Dr. Nahigian. Tr. at
447- 57. Dr. Nahigian opined Plaintiff was medically
qualified to perform the essential duties of her job, but
needed accommodations because she temporarily could not bend
or climb ladders or poles, was limited in stooping and
squatting, and could only lift up to 30 pounds. Tr. at 448.
9, 2006, Plaintiff presented to Dr. Storick. Tr. at 443-46.
Dr. Storick reviewed Plaintiff's prior medical history,
noted she had limited ROM in her left knee with tenderness
along the left lumbosacral junction, and assessed chronic low
back pain and lumbar spondylosis. Tr. at 443. Dr. Storick
noted Plaintiff's ongoing back pain may have multiple
etiologies and administered facet joint injections. Tr. at
444-45, 610-17, 858-60.
11, 2006, Plaintiff presented to Dr. Nahigian and reported
she continued to have episodes of instability with her left
leg, but her swelling and pain had improved. Tr. at 639, 686.
Dr. Nahigian explained episodes of instability were due to
residual weakness in Plaintiff's leg. Id. Dr.
Nahigian limited Plaintiff to the same work restrictions and
continued physical therapy. Tr. at 458, 639.
31, 2006, Plaintiff presented to Dr. Jarosz with exacerbated
back pain the prior week. Tr. at 636, 685. Dr. Jarosz ordered
a bone scan of the lumbar spine and continued her physical
May 31, 2006, Dr. Nahigian opined Plaintiff was medically
qualified to perform the essential duties of her job, but
needed accommodations because she temporarily could not bend,
was limited in stooping and squatting, and could only lift up
to 30 pounds. Tr. at 459. Dr. Nahigian continued physical
27, 2006, a bone scan was unremarkable. Tr. at 441, 460.
29, 2006, Plaintiff presented to Dr. Jarosz with complaints
of knee and back pain. Tr. at 634, 683. Dr. Jarosz reviewed
Plaintiff's medical history, performed a physical exam,
referred her to Ezra B. Riber, M.D. (“Dr.
Riber”), for a consultation regarding medial branch
blocks and facet joint rhizotomy. Tr. at 634. He also opined
Plaintiff was medically qualified to perform the essential
duties of her job, but needed accommodations because she
temporarily could not bend or climb ladders or poles, was
limited in stooping and squatting, and could only lift up to
30 pounds. Tr. at 461.
11, 2006, Plaintiff presented to Dr. Nahigian, who noted she
was “much improved with decreasing pain and
swelling.” Tr. at 463, 633, 682. Dr. Nahigian found a
well-tracking patella and nearly resolved swelling and joint
line symptoms. Id. Dr. Nahigian assessed
“[status-post] partial medial meniscectomy and lateral
retinacular release, doing well.” Id. Dr.
We will allow three additional months in case the patient is
having problems, then she will be automatically declared MMI.
I do feel it is imperative that she continue to strengthen
the leg. She may transition to a home exercise program and
continue with her swimming. For her total knee injury and
surgical intervention, she will be assigned a 10% permanent
impairment rating of the left lower extremity. She has no
absolute restrictions and may participate in activities as
August 3, 2006, Plaintiff presented to Dr. Nahigian and
reported she twisted her left knee when she was chased by a
dog. Tr. at 632, 681. Dr. Nahigian noted Plaintiff “had
done extremely well prior to this injury” and found a
Grade 1 medial collateral ligament (“MCL”) sprain
and secondary synovitis. Tr. at 632. Dr. Nahigian injected
Depo-Medrol and Lidocaine into Plaintiff's left knee and
scheduled a follow-up appointment in four weeks. Id.
August 23, 2006, Plaintiff presented to Dr. Riber, at
Palmetto Pain Management, for a consultation and evaluation
of back pain. Tr. at 708-09, 737-38. Dr. Riber found lumbar
spine pain and an unremarkable gait. Id. Dr. Riber
assessed post-traumatic lumbar facet syndrome and
“reasonably good, short-term relief from
intra-articular facet injections” and scheduled medial
branch blocks. Id.
September 21, 2006, Dr. Riber administered medial branch
blocks at L4-L5 and L5-S1, bilaterally. Tr. at 717, 736.
October 3, 2006, Plaintiff presented to Dr. Nahigian and
reported her knee remained the same or slightly improved. Tr.
at 631, 680. Dr. Nahigian noted Plaintiff's knee ROM was
improving, but her MCL was tender and her quadricep strength
was weak. Id. Dr. Nahigian limited her to the
“same restrictions of essentially a sit-down job,
” scheduled an appointment in six weeks, and hoped she
would reach MMI at that time. Id.
October 10, 2006, Plaintiff attended additional physical
therapy sessions at HealthSouth until December 29, 2006. Tr.
at 467-502, 467-600.
October 19, 2006, Dr. Riber performed medial branch blocks at
L3-L4, L4-L5, L5-S1, bilaterally. Tr. at 716, 735.
November 8, 2006, Dr. Riber performed medial branch blocks at
L4-L5 and L5-S1 facet joints, bilaterally. Tr. at 734.
November 8, 2006, Dr. Jarosz referred Plaintiff to Dr. Riber
for a facet joint rhizotomy. Tr. at 630, 679. Dr. Riber
continued Plaintiff's work restrictions of lifting no
greater than 30-35 pounds with limited squatting and stooping
and avoiding frequent bending and prolonged standing more
than four hours. Id. Dr. Jarosz noted he would be
relocating, but Dr. Riber could refer Plaintiff to an
appropriate doctor for further follow up, and he believed she
would be “much better after her facet joint rhizotomies
and if she is able to lose about 40-50 pounds.”
December 5, 2006, Dr. Nahigian opined Plaintiff's knee
had reached MMI with a 10% impairment rating and noted she
had restrictions for her back that would supersede any knee
restrictions. Tr. at 464, 678. Dr. Nahigian noted he did