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Medina v. Colvin

United States District Court, S.D. California

March 27, 2017

WALDO R. MEDINA, Plaintiff,
v.
CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant.

         ORDER ADOPTING REPORT AND RECOMMENDATION (1) DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, [DKT. NOS. 26, 32]; (2) DENYING DEFENDANT'S MOTION TO DISMISS, [DKT. NO. 25]; (3) DENYING PLAINTIFF'S MOTION TO EXCLUDE EVIDENCE, [DKT. NO. 30]; AND (4) DENYING PLAINTIFF'S EX PARTE REQUEST TO SUPPLEMENT THE RECORD [DKT. NO. 28]

          HON. GONZALO P. CURIEL United States District Judge.

         On January 28, 2016, Plaintiff Waldo Rene Medina (“Plaintiff”), proceeding pro se, filed a complaint seeking judicial review of a final decision of the Commissioner of Social Security (“Defendant” or “Commissioner”) denying Plaintiff's application for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). On January 23, 2017, Magistrate Judge Karen Crawford issued a report and recommendation (“Report”) recommending Plaintiff's motion for summary judgment be denied, that Defendant's cross-motion for summary judgment be granted, that Defendant's motion for involuntary dismissal be denied and that Plaintiff's motion to exclude evidence and ex parte request to supplement the record be denied. (Dkt. No. 37.) Plaintiff filed an objection on February 13, 2017. (Dkt. No. 38.) After careful consideration of the pleadings, the supporting documents, and the applicable law, the Court ADOPTS in full the Magistrate Judge's Report.

         Procedural Background

         On December 9, 2011, Plaintiff filed an application for disability insurance benefits (“DIB”) under Title II of the Social Security Act (“Act”) and an application for supplemental security income (“SSI”) under Title XVI of the Act.[1] (Administrative Record (“AR”) 13, 180, 184). In both applications, he alleged a disability beginning on August 10, 2002. (AR 13, 180, 184.) Both of Plaintiff's claims were denied at the initial level and again upon reconsideration. (AR 13-22, 53-120.)

         On December 11, 2013, Plaintiff appeared with counsel and testified before an Administrative Law Judge (“ALJ”). (AR 27-52.) On March 14, 2014, the ALJ issued a written decision finding that Plaintiff was not disabled as defined under both sections of the Act. (AR 13-22.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for a review of the decision on December 4, 2015. (AR 1-5.)

         On January 28, 2016, Plaintiff, proceeding pro se, commenced the instant action seeking judicial review of Defendant's decision. (Dkt. No. 1, Compl.) On November 3, 2016, Plaintiff filed his motion for summary judgment which was filed nunc pro tunc to October 17, 2016. (Dkt. No. 32.) Plaintiff also filed an ex parte request to supplement the administrative record and a motion to exclude evidence. (Dkt. Nos. 28, 30.) On October 19, 2016, without knowing that Plaintiff's motion for summary judgment had been received by the Court, Defendant filed a motion to dismiss for involuntary dismissal for failing to prosecute and failing to comply with a court order. (Dkt. No. 25.) Then, on October 28, 2016, Defendant filed its motion for summary judgment. (Dkt. No. 28.) On November 4, 2016, Defendant filed its opposition to Plaintiff's motion for summary judgment, ex parte request to supplement the administrative record and motion to exclude. (Dkt. No. 33.) On November 29, 2016, Plaintiff filed his opposition to Defendant's motion for summary judgment. (Dkt. No. 36.)

         On January 23, 2017, the Magistrate Judge issued the Report. (Dkt. No. 37.) Plaintiff filed an objection on February 13, 2017. (Dkt. No. 38.)

         Factual Background

         Plaintiff alleges a disability as of August 10, 2002. (AR 55.) On his applications, he alleged a disability based on injury to left elbow and right leg/knee; shattered tibia and fibula, 2 steel plates; transplanted anterior crustate ligament with shattered tibia; shattered radius and ulna, 2 more steel plates; and turrets possibly due to anesthesia from broken leg surgery. (AR 55, 67.)

         A. Plaintiff's Testimony

         At the hearing before the ALJ, Plaintiff was fifty-four years old. (AR 30.) He completed all the course work for an associate's degree but did not get the degree. (Id.) He supports himself through “food stamps, medical testing, parents.” (AR 30-31.) He has previous work experience as a clerk in a medical office and repaired laser printers. (AR 33-34.) He lives alone, does his grocery shopping and takes the bus to run errands. (AR 36.) He uses a bicycle as a walker when he transfers between buses, and uses it in the grocery stores. (Id.) At the grocery store, he uses the basket on the handlebars of his bike to carry his groceries. (Id.) He only rides his bicycle on a flat road and not hills. (AR 37.) His doctors recommended that he ride a bicycle in order to maintain musculature around his structures and because biking has the least impact with the most benefit. (AR 41.)

         According to Plaintiff, he must limit his errands. For example, he can do two errands in a day but if he does two errands in a day for three days out of the week, he will be unable to walk for a day or two and must scoot around on the carpet inside his home to get from place to place. (AR 37-38.) So if he does one errand a day during the week, it is easier. (AR 37.) He also claims there are days when he is just laying in bed. (AR 37-38.) Besides running one or two errands a day, he is home and does digital painting on a computer which only requires one hand and no keyboard. (AR 38.) He elevates his leg every time he is sitting or lying down at home. (AR 38.) As for walking it depends on how much he exerted the previous day but he can go half a block to a block and a half before he has a serious limp or serious pain. (AR 39.)

         He testified that he can stand about 10 to 15 minutes on one day, and if he does, then he cannot stand for the rest of the week. (Id.) After a day or two, he cannot even stand and scoots around his house. (Id.) Since his right leg is unstable, he loses his balance daily and uses walls to support himself. (AR 39, 40.) He says he does not shower or bathe since it's too risky due to instability problems so he puts “some water in the tub and wash[es] off that way.” (AR 40.) He cannot take his laundry to the washing machine so he washes two shirts and two shorts at a time, and hang dries them. (AR 40.) At his hearing, he testified that he cannot sit for an 8 hour job because he has to get up every few hours or his leg stiffens. (AR 35.) He asserts it takes about three and a half minutes for him to get up on his feet after sitting for a couple of hours and by the time he gets on his feet, he needs to sit back down again. (Id.) He does not take any pain medication. (Id.)

         Plaintiff also testified that his left arm, which previously required surgery, begins to hurt after typing for five or ten minutes. (AR 48.) The pain feels like the “nerve kind of damage” he has experienced in his knee. (Id.) After using his left arm for fine motor skills, such as typing, for 15 minutes he has to stop. (AR 48.) He can use his fine motor skills no longer than 15 minutes twice a day. (AR 48-49.) If he uses his fine motor skills twice in a day, then the next day, he cannot type. (AR 48-49.) When he needs to lift something that weighs 10 to 15 pounds, plaintiff said he has to “favor the other arm.” (AR 49.)

         As to his Tourette syndrome, Plaintiff stated that when he got off pain medication in 2003, he would have five or seven episodes a day until about 2010. (AR 41.) Then the episodes began to taper off and he had not had one in the past few months. (Id.) When he had episodes, it was very loud as his voice can carry. (AR 42.)

         At the hearing, Dr. Anthony E. Francis testified as the medical expert. (AR 42.) He testified that he could not tell how bad the Tourette's or tic disorder is but it is a condition that can come and go and can be treated with medication. (AR 42-43.) Based on his review of Plaintiff's medical record, Dr. Francis testified that Plaintiff is able to do sedentary work and his condition does not meet or equal a Listing. (AR 46.) Bonnie Sinclair testified as the vocational expert and concluded that Plaintiff could do skilled, light and sedentary work because he can sit six to seven hours a day, write, type or handle small objects six to seven hours a day and can carry 20 to 30 pounds twice a month. (AR 46-47.)

         B. Medical Evidence

         The Court recites the medical evidence facts presented in the Report. (Dkt. No. 37 at 6-15.) The earliest medical treatment records are from August 21, 2002, and were prepared by Rodney D. Henderson, M.D., an orthopedic surgeon, ten days after plaintiff had surgery to repair a“comminuted, right, tibial plateau fracture” on his right knee. (AR 325-26.) At this time, plaintiff was reportedly “doing well” and was “weaning off Vicodin.” (AR 326.) X-rays showed “good alignment at the fracture site” and “hardware in good position.” (AR 326.) In addition, Dr. Henderson reported that there was “no pain with passive motion.” (AR 326.)

         Thereafter, plaintiff had several follow-up appointments with Dr. Henderson. On September 9, 2002, Dr. Henderson's treatment notes state that: “He is doing well. He denies any pain at rest. He does report some sensation of a bone moving when he moves his legs. . . . There is atrophy of the quadriceps. There is really no swelling at the knee at all, and the incision is completely healed. . . . AP and lateral radiographs of the tibia show no change in the hardware position or alignment. There is still a little varus[2] at the proximal fragment, but this is unchanged from the original x-rays.” (AR 325.) Dr. Henderson recommended that Plaintiff “continue non-weightbearing and gentle range of motion up to 90 degrees as tolerated. . . .” (AR 325.)

         On October 14, 2002, two months after surgery, Dr. Henderson reported that plaintiff was “doing well” and “denie[d] any pain.” (AR 324.) At this time, Dr. Henderson indicated plaintiff could begin to “toe-touch weight bear, and do straight leg raises and quad sets.” (AR 324.) At the time of his follow-up appointment on November 13, 2002, plaintiff reported he had been “trying to bear weight” but was having some pain in the knee joint. (AR 323.) Dr. Henderson indicated plaintiff could “wean out of the brace, ” “begin weightbearing, ” and “use a stationary cycle as tolerated.” (AR 323.) Plaintiff continued to progress as indicated in Dr. Henderson's notes dated December 16, 2002 (AR 322); January 27, 2003 (AR 321); and March 10, 2003 (AR 320).

         Plaintiff had his final follow-up appointment with Dr. Henderson on June 18, 2003, ten months after his surgery. (AR 319.) The treatment notes state that plaintiff “is doing very well and over the last month his symptoms have markedly improved. He denies any pain. His main problem that he reports, which is very minor, is some weakness when he descends stairs. He has been cycling on a daily basis. His quadracep development has improved. He has full flexion, full extension, and there is no effusion in the knee. Clinically, there is just very mild varus compared to the opposite knee which is also at slight varus. . . . I will release him from my care. I have recommended that he avoid impact loading exercises. He is certainly safer in continuing cycling and swimming. . . .” (AR 319.)

         On July 28, 2007, plaintiff went to the emergency room at Scripps Memorial Hospital after he fell off a bicycle and landed on his left side. He had a “significant deformity to his left elbow.” (AR 205.) An X-ray revealed “a dislocation of the elbow and radial head, with a fracture of the proximal ulna that is comminuted.” (AR 306.) His fracture was “aligned and splinted while he was sedated.” (AR 306.) On July 29, 2007, a detailed Operative Report indicates plaintiff had surgery on his left elbow because of a “comminuted unstable Monteggia fracture dislocation.” (AR 302-304.) He was discharged on July 31, 2007. (AR 301.) Prior to surgery, Plaintiff was advised it was unlikely he would have “return of full range of motion of his elbow and forearm.” (AR 309.)

         On August 3, 2007, shortly after the surgery on his elbow, plaintiff went to see Dr. Henderson seeking “reassurance” and a “second opinion.” (AR 316.) Plaintiff was known to Dr. Henderson, because he previously operated on plaintiff's knee. (AR 316.) At this time, Plaintiff's main concern was that he had been told he “may be at risk for dislocation in the future if his elbow comes out into terminal extension.” (AR 316.) Dr. Henderson examined plaintiff and was able to review his x-rays. In addition, Dr. Henderson reviewed postoperative radiographs, which showed “essentially anatomic alignment with internal plate fixation with nice concentric joint alignment.” (AR 317.) He reassured plaintiff that his x-rays “look excellent.” (AR 317.) Dr. Henderson's written report also states as follows: “Theoretically, he is at risk for possibl[e] dislocation and extension secondary to the comminution of the comoid fragment; however, in my opinion the more likely scenario would be postoperative stiffness limiting full terminal extension which would most likely prevent any episodes of dislocation.” (AR 317.)

         Nine days after his surgery, on August 6, 2007, plaintiff had a follow-up appointment with David R. Hackley, M.D. The treatment notes state that Plaintiff was “healing nicely.” (AR 330.) Dr. Hackley referred Plaintiff to physical therapy to “work on range of motion. . . .” (AR 330.) On August 9, 2007, at the next appointment with Dr. Hackley, Plaintiff was “doing well” and his wound was “healing nicely.” (AR 329.) Dr. Hackley adjusted the brace on plaintiff's arm “to allow him to range from 45 [degrees] to full flexion.” (AR 329.) By the next visit on August 20, 2007, plaintiff reported that he had not yet gone to physical therapy. He said he was dealing with some “social issues” and had not had time to see the therapist. (AR 328.) He was still using a brace and the range of motion for his elbow was “30-120 [degrees].” (AR 328.) However, he had a full range of motion in his fingers and wrists. Dr. Hackley encouraged plaintiff to see the physical therapist to work on range of motion exercises. (AR 328.) Six weeks after surgery, on September 10, 2007, Dr. Hackley reported that Plaintiff was still “doing well” and working on his range of motion. His x-rays showed “further healing” with “[n]o evidence of subluxation on the static views.” (AR 327.)

         Progress notes, dated January 28, 2010, by Denise L. Parnell, M.D., Family Health Centers of San Diego, indicate that Plaintiff had a routine medical examination and requested to have a form filled out for food stamps. (AR 379.) During the examination, Plaintiff reported that he still had pain in his elbow and leg, and his leg swelled if he walked a mile. (AR 379.) He also said he had Tourette syndrome that was “mostly in remission.” (AR 379.)

         On September 16, 2010, Plaintiff had another routine medical examination at Family Health Centers of San Diego and needed a form filled out for social services. (AR 378.) At this time, Plaintiff reported that he could walk a mile before his knee became painful. There was no swelling in his knee or elbow. (AR 378.) His next appointment at Family Health Centers of San Diego was on October 6, 2010. At this time, Plaintiff was requesting “disability certification” because of his knee and elbow injuries. (AR 377.) He was not taking any pain medication at this time. (AR 377.) Plaintiff was advised that his records would be requested from Scripps to determine whether he needed “a referral for ortho” and to assess whether he is disabled. (AR 377.) In a later follow-up appointment at Family Health Centers of San Diego on June 24, 2011, Plaintiff again requested disability certification for “chronic knee pain” and reported he could walk a half a mile with difficulty. However, the attending physician, Amish Chipwadia, M.D., reviewed plaintiff's “ortho records” and “denied” disability. (AR 375.)

         On April 2, 2012, Plaintiff appeared for a psychiatric consultative examination by Gregory M. Nicholson, M.D., a Board Certified Psychiatrist. (AR 337-42.) Dr. Nicholson's report says plaintiff's “chief complaint” is anxiety. (AR 337.) Plaintiff told Dr. Nicholson that he lives alone, and his activities of daily living include cooking and laundry. He had no difficulty with dressing, bathing, or personal hygiene. Although he did not drive because he did not have a vehicle, he was able to go out alone. He was able to handle cash and bills appropriately. (AR 339.) The results of a mental status examination were normal, but plaintiff's mood and affect were anxious. He appeared to be of average intelligence, and his memory was intact. His insight, judgment, and “fund of knowledge w[ere] grossly intact.” (AR 340-41.)

         Based on his examination of Plaintiff, Dr. Nicholson concluded that Plaintiff is able to understand, remember, and carry out simple one or two-step job instructions as well as detailed and complex instructions. (AR 341.) In addition, Dr. Nicholson concluded Plaintiff has an unlimited ability to accept instructions from a supervisor and perform work activities without special supervision. (AR 342.) However, his ability to relate and interact with co-workers and the public and his ability to maintain concentration, attention, persistence, and pace are “mildly limited.” (AR 341.) His ability to maintain regular attendance was also “mildly limited.” (AR 342.)

         On April 10, 2012, at the request of the Department of Social Services in connection with Plaintiff's disability claim, Plaintiff had x-rays and an orthopedic consultation, which resulted in written reports by T. Divakaran, M.D., a Radiologist, and Thomas J. Sabourin, M.D., a Board Certified Orthopedic Surgeon. (AR 344-49.) Dr. Divakaran's Radiology Report concludes as follows with respect to plaintiff's left elbow: “Internal fixation plate and screws in the proximal ulna with healed fracture. Post-traumatic osteoarthritis of the elbow joint.” (AR 349.) With respect to Plaintiff's right knee/leg, the Radiology Report concludes as follows: “Internal fixation plate and screws in the proximal tibia with healed fracture which appears to have extended into the lateral tibial plateau.” (AR 349.)

         Dr. Sabourin's report states that Plaintiff “took a bike and bus to the evaluation today.” (AR 344.) Plaintiff reported pain in his left elbow and right knee as a result of “three significant bicycle accidents” which resulted in injuries to his right knee and left elbow that both needed surgical repair. (AR 344.) He said his right knee is painful when he walks and his elbow is doing “relatively well, ” but he “gets some pain” after typing more than 20 minutes. (AR 344.) He was not receiving any medical treatment or using assistance devices for these problems. (AR 344.) Dr. Sabourin completed a physical examination and reported that Plaintiff “sits and stands with normal posture;” “sits comfortably during the examination;” “rises from a chair without difficulty;” “has no assistance devices;” and has a normal gait and toe heel walking. (AR 345.) Dr. Sabourin also noted that Plaintiff had a normal range of motion in his spine, hips, shoulders, wrists, hands, fingers, ankles, and feet. (AR 346-47.) A neurological examination was also normal except for some decreased sensation near the surgical scar on Plaintiffs right leg. (AR 347.) However, Dr. Sabourin's report states that: “There is a 2 varus instability in the right knee. He has some tenderness over the medial aspect of the right knee. There is no redness, swelling, or gross effusion and there is no significant crepitus. He has a varus deformity in the right knee.” (AR 346.) Dr. Sabourin also reviewed the x-rays that were taken on the day of the appointment. (AR 347.)

         Based on his examination, Dr. Sabourin concluded that Plaintiff does have “problems with his right knee and left elbow.” (AR 348.) Dr. Sabourin's report also states that: “The left elbow is not too significant [of a] problem. He seems to be getting by with it quite well. The right knee, however, is significant and I feel it does give him significant limitations.” (AR 348.) As a result, Dr. Sabourin concluded as follows:

I feel he could only lift and carry 20 pounds occasionally and 10 pounds frequently with this knee. He could stand and walk up to two hours in an eight-hour workday and sit for six hours in an eight-hour workday. Push and pull limitations will be equal to lift and carry limitations. He is unable to walk on uneven terrain with that knee. He could climb, kneel and crouch only occasionally with that knee. His left elbow is doing well enough that I do not feel he has any significant manipulative limitations, but he could do gross manipulation such as handling, torqu[e]ing, and grasping with the left elbow only frequently. He does not use any assistive devices.

(AR 348.)

         During an appointment at Family Health Centers of San Diego on February 22, 2013, Plaintiff complained of chronic pain in his right knee and left elbow, and x-rays were ordered. (AR 364-365.) X-rays were completed on April 3, 2013 and were reviewed by Derrick Allen, M.D., who prepared a detailed report of his findings. As to plaintiff's right knee, Dr. Allen's x-ray findings and conclusion state as follows:

1. Intact orthopedic side plate [within the] lateral tibial plateau. Marked irregularity involving the articular surface of the tibial plateau.
2. Moderate size joint effusion.
3. Moderate to severe patellofemoral ...

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