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Samuel P. Martinez v. Michael J. Astrue

March 19, 2012


The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge



Plaintiff Samuel P. Martinez ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying his application for Supplemental Security Income ("SSI") pursuant to Title XVI of the Social Security Act (the "Act"). 42 U.S.C. § 1383(c)(3). The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.*fn1


Plaintiff was born in 1972, completed the 12th grade, and previously worked as a general laborer, grape stacker, and performed jobs involving receiving/stocking and shipping/receiving. (Administrative Record ("AR") 63, 193, 236.) On December 28, 2009, Plaintiff filed an application for SSI, alleging disability beginning on December 10, 2007, due to a dislocated disk and pinched nerve in his back. (AR 222-29, 235.) Plaintiff also indicated that he had broken his ankle, which required surgery, and he had a recurring infection in his ankle. (AR 24, 54.)

A. Relevant Medical Evidence

Between March 18, 2004, and December 1, 2005, Plaintiff was seen by Thomas R. Evans, M.D., at Tulare Community Health Clinic ("Tulare Clinic"). (AR 359-93.) Plaintiff was regularly treated for chronic back pain and lumbar disk disease, and was occasionally treated for sciatica of the left leg, reflux, internal derangement of the right knee. (AR 359-93.) On December 1, 2005, Plaintiff was "trying to get on TCMS insurance" and was "pending seeing a specialist." (AR 359.) Plaintiff had been unable to work since October 2003. (AR 359.)

On November 30, 2006, Plaintiff was seen by Anil K. Patel, M.D., at Tulare Clinic after he "missed a step and sprained his ankle." Plaintiff complained of a "lot of pain" and was unable to put weight on his left ankle. An x-ray taken at Tulare District Hospital ("Tulare Hospital") indicated that there was "evidence of a bimalleolar fracture of the left ankle with soft tissue swelling." (AR 318.) The next day, on December 1, 2006, Jour R. Lee, M.D., operated on Plaintiff's ankle at Tulare Hospital and performed an "[o]pen reduction internal fixation" including inserting a plate and screw into the ankle. (AR 310, 312, see also AR 317.) Plaintiff was seen by Dr. Lee for post-surgical care. On December 14, 2006, the sutures were removed and the "wound [was] healing, but there [was] a blister on the lateral aspect of the lateral wound." On December 21, 2006, Dr. Lee indicated the Plaintiff's wound was "healing slowly, but there [was] no infection."

On February 7, 2007, Dr. Lee reported that Plaintiff "had a slow healing of lateral malleolus. There [was] superficial skin slough [with] dehiscence, but no[] dip into the plate and screw. This has been treated with debridement*fn2 in the office with no avail." (AR 316.) As such, Plaintiff was required to "return[] to [the] OR [operating room] to remove the hardware from lateral malleolus to enhance this healing and prevent infection." (AR 316.) Dr. Lee operated on Plaintiff on February 8, 2007, to remove one plate and seven screws, and noted that there was "no drainage from the deep wound. The ankle seem[ed] to be minimally swollen but there [was] no infection." (AR 347.) Plaintiff's sutures were removed on February 23, 2007. (AR 346.)

On March 14, 2007, Dr. Lee indicated that Plaintiff had a "[l]eft ankle post infection wound with necrotic tissue." (AR 345.) A debridement of the skin and subcutaneous tissue was performed. On March 23, 2007, Plaintiff's wound was "healing fine but still [had] some small amount of necrotic tissue." (AR 343.) On April 6, 2007, Dr. Lee noted that the wound was "slow healing" because there was "underneath necrotic tissue that [had] not yet liquefied." (AR 342.) Another debridement was performed on April 12, 2007. (AR 341.)

On April 24, 2007, Jonathan M. Gurdin, M.D., performed an orthopedic evaluation at the request of the Social Security Administration. (AR 324-25.) Dr. Gurdin indicated that Plaintiff's low back was reportedly injured in an automobile accident in 1992 and, after undergoing an MRI, he was informed that he had a bulging disc and that surgery was not advised. (AR 324.) Plaintiff's condition was "aggravated by a recent fracture of the left ankle with delayed healing." (AR 324.) Plaintiff indicated that "[w]alking on crutches was difficult for him" and that Plaintiff was using a wheelchair at the time. Plaintiff complained of "constant aching in the lumbar region which worsens with activity including standing, sitting, bending, lifting and twisting." (AR 324.) Upon examination, Plaintiff "was unable to walk and could barely transfer to the table." Plaintiff complained of "mild tenderness" in his back and Dr. Gurdin noted that there was "some tightness." (AR 325.) Plaintiff had "low back pain" upon straight leg raising. Plaintiff's lower leg had "chronic swelling about the ankle and foot with moderate pitting edema . . . There [was] a 3 cm. open wound laterally about the ankle." (AR 325.) Dr. Gurdin diagnosed Plaintiff with recent fracture of the left ankle with open reduction internal fixation, an infection, and delayed wound healing; lumbar myofascitis with probable disc disease; and obesity. (AR 325.) Dr. Gurdin opined that Plaintiff's ankle condition was "aggravating his back condition" and that he "may require further surgery on the ankle including another debridement and possibly skin grafting. Once the ankle has healed he should begin an aggressive program of physical therapy including treatment for the back." (AR 325.) Plaintiff was confined to a wheelchair "[a]t the present time" and was unable to do any walking, standing, lifting, or carrying. (AR 325.)

On May 11, 2007, State Agency physician Sadda V. Reddy, M.D., reviewed Plaintiff's records and opined that Plaintiff's ankle condition would be "non-severe" by November 2007, twelve months after the onset of the fracture. (AR 326-27.)

On July 26, 2007, Dr. Lee performed another debridement. (AR 340.) On September 7, 2007, Dr. Lee noted that the swelling on Plaintiff ankle was "almost gone," that the wound was "healing well," but that Plaintiff was "still limping on the left leg and complains of left knee pain." (AR 397.) Dr. Lee opined that Plaintiff could return to work in October 2007.

On September 28, 2007, State Agency physician John G. Wheeler reviewed the evidence in Plaintiff's file and affirmed Dr. Reddy's assessment. (AR 348.)

On October 16, 2007, Plaintiff was seen by Arnold Weldon, M.D. for follow-up care to his ankle surgery. (AR 354.) Dr. Weldon noted that Plaintiff's ankle had "minimal swelling." (AR 354.) On November 13, 2007, Plaintiff indicated that he had been having "daily pain since November 2006" and that "[d]ue to this chronic pain, [Plaintiff] states he is not able to work." (AR 352.) Dr. Weldon diagnosed Plaintiff with chronic low back pain and left ankle pain. (AR 352.) An examination of Plaintiff's ankle showed a surgical scar, but the left foot was "okay." (AR 352.) On December 26, 2007, Plaintiff complained to Dr. Weldon that his ankle pain was "not going away and [was] actually . . . getting worse." (AR 350.) Dr. Weldon noted that there was a "slowly healing surgical scar in the left lateral aspect of the left ankle." (AR 350.)

On February 19, 2008, Dr. Weldon checked Plaintiff's ankle again and noted that Plaintiff had been "seen by [an] orthopedic surgeon who[,] according to him[,] told him that he will have to live with it, with the swelling and the pain, and no specific treatment was recommended." (AR 433.)

Dr. Weldon advised Plaintiff to "apply for SSI due to the fact that []he states []he cannot work." (AR 433.) Dr. Weldon assessed Plaintiff with chronic back pain and ankle pain and prescribed pain medication of hydrocodone, ibuprofen, and Ultram. (AR 422-33.) On June 6, 2008, Dr. Weldon noted "mild edema but no unstable joint" in Plaintiff's left ankle. (AR 427.) On July 7, 2008, Plaintiff's ankle had "quite a bit of swelling and tenderness." (AR 425.) On October 24, 2008, Plaintiff's ankle showed "swelling" and was "tender with palpation." (AR 420.) On December 17, 2008, Plaintiff had an "open sore" on his ankle "measuring 1 cm x 0.5 cm in diameter with some serious drainage." (AR 418.)

On January 13, 2009, Dr. Weldon wrote a letter addressed "To Whom It May Concern." (AR 417.) Dr. Weldon's letter stated: "Mr. Sammy Martinez has suffered from chronic left ankle pain status post open reduction and internal fixation. The patient is also suffering from chronic wound infection requiring treatments from time to time. It appears that his condition to be (sic) stable, stationary, but disabling." (AR 417.)

On February 11, 2009, Dr. Weldon noted that Plaintiff's "left ankle pain and drainage stopped a few days ago" but that there was a "scab at the site of the opening" and that "unfortunately, the pain increased." (AR 453.) Dr. Weldon noted swelling and tenderness, but no drainage, of the ankle. (AR 453.)

On March 27, 2009, an x-ray of Plaintiff's lumbosacral spine was performed at Kaweah Delta Medical Center. (AR 443.) The findings indicated that there was a "[s]omewhat narrowed disc space at the L5-S1 level" but that the "examination otherwise [was] within normal limits." (AR 443.)

On March 29, 2009, a comprehensive orthopedic evaluation was performed by Dale H. Van Kirk, M.D. based on Plaintiff's chief complaints of low back pain and left ankle fracture with residual pain. (AR 438-42.) Dr. Van Kirk conducted a physical examination of Plaintiff, including testing his range of motion. (AR 440-41.) Dr. Van Kirk noted that Plaintiff "moan[ed] and groan[ed] throughout the examination, mainly referencing his back" and that he "appear[ed] to exaggerate moderate to a marked degree his symptoms, mainly his back and also the left ankle." (AR 440.) Dr. Van Kirk reported that there was no pain or difficulty with the range of motion of Plaintiff's spine, but on testing Plaintiff's lumbar region he "moan[ed] and groan[ed] and appear[ed] to have great difficulty moving and [was] unwilling to move much." (AR 441.) Plaintiff appeared to have "moderate pain with attempts at motion" of his ankle, and was "unwilling or unable to move the ankle farther." (AR 441.) Dr. Van Kirk noted Plaintiff's functional assessment, and opined that Plaintiff could sit four hours out of an eight-hour day, if Plaintiff could get up every half hour to reposition himself; should use a lumbosacral corset for his back, a quad cane, and an ankle brace; could lift 10 pounds frequently and 20 pounds occasionally; could perform no postural activities; had no manipulative restrictions; and should not be required to work in cold and/or damp environments. (AR 442.)

On the same date, Dr. Van Kirk completed a check-box form. (AR 444-50.) Dr. Van Kirk indicated that Plaintiff could lift and carry up to 10 pounds continuously, up to 20 pounds frequently, and up to 50 pounds occasionally. (AR 444.) Dr. Van Kirk opined that Plaintiff could sit, stand, and walk for 45 minutes at one time and for four hours in an eight-hour day, and needed a cane to ambulate. (AR 445.) Plaintiff had no limitations on the use of his hands and right foot, but could never use his left foot to operate foot controls due to his ankle injury. (AR 446.) Plaintiff could occasionally climb stairs and ramps and frequently balance, but could never stoop, kneel, crouch, or crawl. (AR 447.) Dr. Van Kirk noted that Plaintiff had environmental limitations and should never be exposed to unprotected heights, humidity and wetness, extreme cold, and extreme heat. (AR 448.) Plaintiff needed a quad cane to ambulate and could not walk at a reasonable pace over rough and uneven surfaces, but could perform other activities such as shopping, traveling, using public transportation, climbing a few steps, preparing simple meals, caring for his personal hygenie, and handling papers and files. (AR 449.)

Between May 7, 2009, and May 14, 2010, Plaintiff was seen by Dr. Weldon for treatment of his chronic ankle pain. (AR 462-481.) Dr. Weldon found Plaintiff's left ankle to be "swollen and tender," and having "diffuse tenderness with palpation" with "decreased range of motion." (AR 462-80.) On May 14, 2010, Dr. Weldon noted that Plaintiff had been "disabled" since his ankle surgery. (AR 462.)

B. Administrative Proceedings

The Commissioner denied Plaintiff's applications initially and again on reconsideration; consequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (120-23, 125-29, 130.) On February 10, 2009, ALJ Sharon Madsen held a hearing where Plaintiff and a ...

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