United States District Court, S.D. California
REPORT & RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE RE PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT AND DEFENDANT'S CROSS-MOTION FOR SUMMARY
JUDGMENT [ECF Nos. 22, 23]
Adler U.S. Magistrate Judge
Joey Dale Whitman (“Plaintiff”) seeks judicial
review of Defendant Social Security Commissioner Nancy A.
Berryhill's (“Defendant”) determination that
he is not entitled to disability insurance benefits
(“DIB”) and supplemental security income
(“SSI”). The parties have filed cross-motions for
summary judgment. [ECF Nos. 22, 23.] For the reasons set
forth below, the Court recommends Plaintiff's motion for
summary judgment be DENIED and
Defendant's cross-motion for summary judgment be
was born on December 23, 1968 and is a high school graduate.
(Admin R. at 30-31.) Plaintiff worked as a warehouse manager
and delivery driver for a party rentals company from 1998 to
2010. Id. at 31, 152. Plaintiff stopped working in
August 2010 due to swelling and pain in both Achilles
tendons. Id. at 31.
August 16, 2011, Plaintiff filed an application for a period
of disability and disability insurance benefits. Id.
at 16. On October 31, 2011, Plaintiff protectively filed an
application for supplemental security income. Id. at
16, 141, 157. In both applications, the Plaintiff alleged a
disability onset date of August 8, 2010. Id. at 16,
141, 157. The Social Security Administration denied the claim
initially on October 26, 2011 and again upon reconsideration
on March 14, 2012. Id. at 75-84. On April 27, 2012,
Plaintiff filed a written request for an administrative
hearing. Id. at 99-104. On December 9, 2013, a
hearing was conducted by Administrative Law Judge
(“ALJ”) Leland H. Spencer, who determined on
February 28, 2014 that Plaintiff was not disabled within the
meaning of the Social Security Act. Id. at 16-23. On
April 27, 2014, Plaintiff requested a review of the ALJ's
decision. Id. at 12. The Appeals Council for the
Social Security Administration (“SSA”) denied
Plaintiff's request for review on November 6, 2015.
Id. at 1-4. Plaintiff then commenced this action
pursuant to 42 U.S.C. § 405(g).
Scripps Clinic, Treating Physicians (August 2010 - October
August 8, 2010, Plaintiff presented to the urgent care at
Scripps Clinic and was examined by Scott Krishel, M.D.
Id. at 189. Plaintiff complained of pain and
swelling in the bilateral Achilles heel tendons over the past
several months, with the right tendon becoming particularly
worse, making it difficult to walk. Id. Plaintiff
had a history of gout. Id. Dr. Krishel reported
slight tenderness on the right side at the base of the heel
and no tenderness or swelling in the left Achilles tendon.
Id. Dr. Krishel reported 5/5 for dorsiflexion and
plantar flexion of the ankle against resistance. Id.
at 190. Dr. Krishel completed x-rays of the ankle and foot
bilaterally and indicated no definite acute changes, pending
the radiologist's reading. Id. Plaintiff's
right leg was splinted and he was given crutches.
Id. Dr. Krishel advised Plaintiff to continue
non-steroidal pain medication and prescribed a small dose of
August 9, 2010, Plaintiff presented to Dr. Clifford Feaver, a
podiatrist. Id. at 191. Plaintiff reported the
Vicodin prescribed to him in Urgent Care had not helped much.
Id. Dr. Feaver noted Plaintiff was a very pleasant
man, in no acute distress. Id. at 192. Dr. Feaver
reported the radiographs of the right ankle were negative and
(1) there was quite substantial inflammation and swelling
around the Achilles tendon bilaterally, (2) there was
thickening in the middle third, (3) it was much more tender
on the right than on the left, (4) the Thompson test was
negative, (5) Homans' sign was negative, (6) there was no
particular pain with compression of the calves on either
side, (7) mild cavus foot structure, (8) dorsiflexion at the
ankle was limited bilaterally, and (9) neurovascular status
was grossly intact bilaterally. Id. Dr. Feaver
immobilized the right side in a Controlled Ankle Motion
(“CAM”) Walker boot for added comfort and
protection and advised Plaintiff to increase his medication
dosage for gout. Id. Dr. Feaver also ordered an MRI
for the more symptomatic right Achilles tendon and advised
Plaintiff to follow up when the study became available.
August 10, 2010, Plaintiff presented to Edward V.H. Skol,
M.D., a rheumatologist. Id. at 194. Plaintiff
reported the increased dosage of his gout medication had not
helped. Id. Dr. Skol noted Plaintiff was well
appearing, but obviously uncomfortable. Id. at 195.
Dr. Skol reported there was a thickening and swelling of both
Achilles tendons in the proximal aspect and tenderness to
palpation. Id. The doctor opined that although he
could not rule it out completely, he did not think this was a
gout flare-up because of the duration of the pain and the
non-responsiveness to the increased medication. Id.
at 196. Dr. Skol advised Plaintiff to continue to wear the
CAM Walker boot on the right and to avoid working.
August 16, 2010, Plaintiff returned to Dr. Feaver for the MRI
review. Id. at 197. The MRI demonstrated a moderate
grade intrasubstance tearing longitudinally of the right
Achilles tendon which clinically correlated to the thickening
and the area of chief complaint. Id. at 197, 232.
Dr. Feaver diagnosed Plaintiff with bilateral Achilles
tendinosis, greater on the right than the left. Id.
Dr. Feaver directed Plaintiff to continue wearing the CAM
Walker for an additional two weeks, at which time physical
therapy would be initiated. Id.
August 30, 2010 to June 28, 2011, Plaintiff presented to Dr.
Feaver approximately every six weeks for follow-up.
Id. at 198-211. By the October 4, 2010 appointment,
Plaintiff had developed more significant symptoms on the left
and a CAM Walker was dispensed for use on that side.
Id. at 200. During those follow-up appointments, Dr.
Feaver advised Plaintiff to try and wean himself off the CAM
Walker. Id. at 198, 200, 203, 205, 207. At the June
28, 2011 appointment, Dr. Feaver noted over the past ten
months that Plaintiff consistently had physical therapy and
had made relatively good progress, but Plaintiff still
experienced significant symptoms with extended activity.
Id. at 211. Plaintiff reported he had attended a
fair the previous week for much of the day, but had taken
“mini rest breaks.” Id. Upon physical
examination, Plaintiff was able to do toe raising, but Dr.
Feaver noted tenderness to palpation and fusiform thickening
in the middle third of the Achilles tendon bilaterally.
Id. Dr. Feaver also noted the left was worse than
the right, but there were no other significant changes.
Id. Dr. Feaver assessed Plaintiff's pain had
improved by 80%-90%, but Plaintiff continued to have
significantly restricted activity and was unable to work.
Id. Dr. Feaver recommended a consultation with Dr.
Rosen to discuss surgical options. Id.
August 10, 2011, Plaintiff presented to Dr. Adam S. Rosen for
surgical consultation. Id. at 213. Plaintiff
reported the CAM Walkers and physical therapy had helped
somewhat, but he essentially had not improved and continued
to be out of work due to pain. Id. Dr. Rosen
requested an MRI of the left ankle and discussed the
possibility of surgery on the left Achilles. Id. at
214. The MRI of the left ankle, performed on August 25, 2011,
showed Achilles tendinosis with microscopic intra-substance
tearing and mild paratenonitis. Id. at 236.
August 30, 2011 to October 12, 2011, Plaintiff presented to
Dr. John Cronin due to persistent loud snoring and struggling
to breathe while sleeping. Id. at 216-21, 254-56,
259-61. After completing a sleep study, Plaintiff was
diagnosed with mild obstructive sleep apnea. Id. at
220, 306. During follow-up visits, Dr. Cronin noted Plaintiff
responded well to CPAP, and was still responding well as of
January 11, 2012. Id. at 243-45.
George G. Spellman, Jr. M.D., Non-Examining Physician
October 14, 2011, Dr. George G. Spellman, Jr. completed a
physical residual functional capacity assessment regarding
Plaintiff. Id. at 238-40. Dr. Spellman reported
limitations due to bilateral degenerative joint disease of
the feet, Achilles enthesopathy bilaterally, and obesity were
evident in the medical evidence of record. Id. at
239. Dr. Spellman found Plaintiff was only partially credible
because the alleged persisting severity was not evident in
the longitudinal treatment record showing improvement in the
Achilles tendon. Id. Dr. Spellman further noted
Plaintiff's obstructive sleep apnea was mitigated by the
CPAP. Id. Dr. Spellman opined Plaintiff was capable
of performing at least light work. Id.
Adam Rosen, M.D., Treating Physician (October 2011 - January
October 20, 2011, Dr. Rosen operated on Plaintiff for chronic
left Achilles tendinosis. Id. at 281. At the time of
his left Achilles tendon debridement and repair surgery,
Plaintiff was found to have thickened fibrotic tissue in the
intrasubstance of the tendon. Id. at 282. No
calcific pieces were noted and more than 50% of the tendon
was intact. Id.
on November 2, 2011, Plaintiff presented to Dr. Rosen for
postoperative follow-ups. Id. at 252. Dr. Rosen
noted that clinically, Plaintiff was doing well and converted
him into a short-leg cast in slight plantar flexion.
Id. On November 16, 2011, Dr. Rosen noted there was
some slight pulling and tightness when he brought Plaintiff
up to neutral, but observed he was doing well clinically.
Id. at 250. On December 7, 2011, Dr. Rosen again
noted Plaintiff was doing well and had a well-healed
incision. Id. at 248. Plaintiff was converted into a
CAM Walker and given a prescription for physical therapy.
January 11, 2012, Dr. Rosen noted Plaintiff had not yet
started physical therapy. Id. at 246. Upon
examination, Dr. Rosen again noted a well-healed incision,
but also mild palpable nodular thickening over the area of
his prior surgical debridement. Id. He noted no
tenderness on palpation and good dorsiflexion and plantar
flexion, although it was somewhat stiff compared to the
contralateral side. Id. Plaintiff was converted from
his CAM Walker to a shoe with a heel lift and was encouraged
to start physical therapy. Id.
James Metcalf, M.D., Non-Examining Physician (March
March 13, 2012, Dr. James Metcalf analyzed Plaintiff's
case and affirmed Dr. Spellman's October 14, 2011 finding
of a light residual functional capacity. Id. at 308.
Dr. Metcalf noted that since the initial decision, Plaintiff
had undergone left Achilles tendon debridement and repair.
Id. Dr. Metcalf noted Plaintiff was doing well as of
January 11, 2012 and was ready to begin physical therapy.
Id. Dr. Metcalf's review of Plaintiff's
recent activities of daily living showed that Plaintiff
reported no problems with personal care, and could prepare
sandwiches, soups, and cereal daily. Id. Plaintiff
also reported he was able to fold laundry while sitting, go
outside daily, drive short distances, and shop in stores for
up to 35-40 minutes. Id. Additionally, Plaintiff
reported he could watch movies, play board games, and visit
with others, and could lift up to ten pounds and walk up to
100 feet. Id. Plaintiff also reported pain with
exertional activities and use of the CAM Walker daily.
Id. Dr. Metcalf affirmed Plaintiff's light
residual function assessment lasting until October 20, 2012,
one year from the date of surgery. Id.
Adam Rosen, M.D., Treating Physician (May 2013)
returned to Dr. Rosen, his surgeon, on May 8, 2013.
Id. at 335. Dr. Rosen noted Plaintiff had undergone
a repeat debridement with flexor transfer on the left
Achilles tendon on October 23, 2012.
Id. Plaintiff reported he had completed
physical therapy and was doing well, but there was pain in
his right heel. Id. Dr. Rosen noted Plaintiff still
had swelling of his left foot and as a result, Plaintiff had
to increase his shoe size. Id. Plaintiff reported
occasional burning sensations that worsened after days in
which he stood for long periods. Id. Plaintiff also
noted occasional use of 800 milligrams of ibuprofen, which
Rosen made the following findings: there was a well-healed
incision, Plaintiff had mild puffiness to the retrocalcaneal
bursa, but no significant edema of the lower extremity; calf
was supple and nontender; mild tightness approximately six
degrees of dorsiflexion on the left; sensation was grossly
intact, and pulses were intact. Id. at 335-36. Dr.
Rosen adjusted Plaintiff's shoe by adding heel lifts to
use for a number of weeks and noted Plaintiff's
ambulation improved with the lifts. Id. at 336. Dr.
Rosen advised Plaintiff to wean out of the heel lifts as his
symptoms allowed. Id. Dr. Rosen recommended a
five-day course of 800 milligrams of Motrin three times a day
to help with swelling and pain, and discussed using
over-the-counter capsaicin. Id. Dr. Rosen also
discussed the continued role of stretching and advised
Plaintiff to use his night split. Id. Dr. Rosen
spent twenty-five minutes with Plaintiff, noting half the
time was spent on patient counseling. Id.
Arch Health Partners, Treating Physicians (May 2013 - October
17, 2013, Plaintiff presented to Dr. Mark Hubbard of Arch
Health Partners for a second opinion. Id. at 324-26.
Plaintiff reported he was still seeing Dr. Rosen for
bilateral Achilles tendon ruptures, and that he also had