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Whitman v. Berryhill

United States District Court, S.D. California

May 18, 2017

JOEY DALE WHITMAN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. [1]

          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]

          Jan M. Adler U.S. Magistrate Judge

         Plaintiff 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 GRANTED.

         I. BACKGROUND

         Plaintiff 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.

         On 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).

         II. MEDICAL EVIDENCE

         A. Scripps Clinic, Treating Physicians (August 2010 - October 2011)

         On 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 Vicodin. Id.

         On 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. Id.

         On 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. Id.

         On 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.

         From 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.

         On 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.

         From 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.

         B. George G. Spellman, Jr. M.D., Non-Examining Physician (October 2011)

         On 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.

         C. Adam Rosen, M.D., Treating Physician (October 2011 - January 2012)

         On 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.

         Beginning 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. Id.

         On 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.

         D. James Metcalf, M.D., Non-Examining Physician (March 2012)

         On 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.

         E. Adam Rosen, M.D., Treating Physician (May 2013)

         Plaintiff 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.[2] 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 helped. Id.

         Dr. 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.

         F. Arch Health Partners, Treating Physicians (May 2013 - October 2013)

         On May 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 ...


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