Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Rosetta Hickman v. Saul

United States District Court, D. South Carolina

July 23, 2019

Anika Rashi Rosetta Hickman, Plaintiff,
v.
Andrew M. Saul, [1] Commissioner of Social Security Administration, Defendant.

          REPORT AND RECOMMENDATION

          SHIVA V. HODGES UNITED STATES MAGISTRATE JUDGE.

         This 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 herein.

         I. Relevant Background

         A. Procedural History

         On 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.[2] Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on July 18, 2018. [ECF No. 1].

         B. Plaintiff's Background and Medical History

         1. Background

         Plaintiff 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.

         2. Medical History[3]

         On 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.

         On 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.

         On 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.

         On 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.

         On 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.

         On 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 available. Id.

         On 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.

         On 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.

         On 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 weeks.” Id.

         On 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. Id.

         On 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.

         On 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.

         On 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.

         On 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.

         On May 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.

         On June 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.

         On July 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.

         On July 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.

         On August 10, 2005, Dr. Van Dam administered a translaminar epidural steroid injection (“ESI”). Tr. at 392-95.

         On 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.” Id.

         On 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.

         On 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 excuse. Id.

         On 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.

         On 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.

         On October 4, 2005, Dr. Van Dam administered a translaminar ESI. Tr. at 385-86.

         On 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. Id.

         On 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.

         On 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. Id.

         On 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.

         On 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 465.

         On 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.

         On February 3, 2006, a left knee x-ray reflected patella-femoral chondrosis with possible medial meniscal repair, unhealed. Tr. at 691-92.

         On 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.

         On 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.[4]

         On 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.

         On 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.

         Also on 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.

         On May 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.

         On May 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.

         On May 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 therapy. Id.

         Also on 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 therapy. Id.

         On June 27, 2006, a bone scan was unremarkable. Tr. at 441, 460.

         On June 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.[5]

         On July 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. Nahigian concluded,

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 she desires.

Id.

         On 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.

         On 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.

         On September 21, 2006, Dr. Riber administered medial branch blocks at L4-L5 and L5-S1, bilaterally. Tr. at 717, 736.

         On 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.

         On October 10, 2006, Plaintiff attended additional physical therapy sessions at HealthSouth until December 29, 2006. Tr. at 467-502, 467-600.

         On October 19, 2006, Dr. Riber performed medial branch blocks at L3-L4, L4-L5, L5-S1, bilaterally. Tr. at 716, 735.

         On November 8, 2006, Dr. Riber performed medial branch blocks at L4-L5 and L5-S1 facet joints, bilaterally. Tr. at 734.

         Also on 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.” Id.

         On 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 “not ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.