United States District Court, D. Arizona
Terry Orsburn (“Orsburn”) brought this action
pursuant to 42 U.S.C. § 405(g) seeking judicial review
of a final decision by the Commissioner of Social Security
(“Commissioner”). Orsburn raises three issues on
appeal: 1) the Administrative Law Judge (“ALJ”)
failed to weigh treating physician Dr. Foote's opinion;
2) the ALJ's residual functional capacity
(“RFC”) assessment is not supported by
substantial evidence because the ALJ failed to follow the
treating physician rule; and 3) the ALJ failed to provide
clear and convincing reasons for discounting Orsburn's
testimony regarding her functional limitations. (Doc. 13).
the Court are Orsburn's Opening Brief, Defendant's
Response, and Orsburn's Reply. (Docs. 13, 14 & 15).
The United States Magistrate Judge has received the written
consent of both parties and presides over this case pursuant
to 28 U.S.C. § 636(c) and Rule 73, Federal Rules of
Civil Procedure. For the reasons stated below, the Court
finds that this matter should be reversed and remanded for
further administrative proceedings.
filed an application for Social Security Disability Insurance
and Supplemental Security Income on June 24, 2013.
(Administrative Record (“AR”) 87). Orsburn
alleged disability beginning on October 17, 2011 based on
pain in her neck, back, shoulder, hip, and left leg, anxiety,
asthma, and migraines. (AR 88). Orsburn's application was
denied upon initial review (AR 98) and on reconsideration (AR
128). A hearing was held on January 5, 2016 (AR 59), after
which ALJ MaryAnn Lunderman found, at Step Four, that Orsburn
was not disabled because she could perform her past relevant
work as a production coordinator as generally performed. (AR
30). The ALJ also made an alternative finding at Step Five
that Orsburn could perform other work existing in the
national economy. (AR 30-31). On April 27, 2017 the Appeals
Council denied Orsburn's request to review the ALJ's
decision. (AR 1).
date last insured (“DLI”) for DIB purposes is
March 30, 2017. (AR 87). Thus, in order to be eligible for
benefits, Orsburn must prove that she was disabled during the
time period of her alleged onset date (“AOD”) of
October 17, 2011 and her DLI of March 30, 2017.
was born on June 21, 1959, making her 52 at the AOD of her
disability. (AR 87). She has past relevant work as a
stagehand, production coordinator, and production office
manager. (AR 245).
February 24, 2011 Orsburn saw Dr. Barron for right shoulder
and neck pain after falling at work. (AR 331). On exam she
had full ROM right shoulder, strength 5/5, neck tenderness
but full ROM, and negative Neer and Hawkin's sign. (AR
332). Dr. Barron assessed sprain and strain of shoulder and
upper arm, and recommended PT. (AR 332).
April 7, 2011 Orsburn saw Dr. Barron for upper limb tingling,
fatigue, and weakness. (AR 329). On exam she had full ROM
right shoulder, strength 5/5, neck tenderness but full ROM,
and diminished motion and diffuse tenderness of the cervical
spine. Dr. Barron assessed sprain and strain of shoulder and
upper arm, and neck sprain and strain. (AR 329).
April 19, 2011 MRI of the cervical spine showed mid and lower
cervical degenerative findings with mild canal stenosis and
ventral cord flattening at ¶ 4/5 and C5/6. (AR 309). An
MRI of the thoracic spine showed degenerative findings
including right foraminal disc herniation at ¶ 2/3 and
severe right foraminal narrowing at ¶ 3/4. (AR 311).
6, 2011 letter from Dr. DiGiacinto notes that Orsburn fell at
work and had severe pain in her shoulder and lower back, and
that she continued to work. (AR 334). Her MRI showed chronic
degenerative changes without acute disc herniation. On exam,
she had excellent strength in upper and lower extremities and
normal reflexes, positive SLR on the left, and minimal
percussion tenderness in the intrascapular region.
15, 2011 MRI of the lumbar spine showed multilevel disc
degeneration and slight retrolisthesis, minimal annular bulge
at ¶ 12-L1 and mild annular bulge at ¶ 1/L2. (AR
24, 2011 Orsburn saw Dr. Chapman for lower back, neck, and
arm pain. (AR 323). She described her neck pain as dull,
aching, throbbing, and sharp, 8/10 on average and 10/10 at
worst. Her neck pain radiates into her shoulders and arms and
causes numbness. She also has back pain, 9/10 on average, and
associated with walking, sitting, and standing. Examination
showed normal gait, cervical ROM 50 degrees flexion (normal
50), 40 degrees extension (normal 60), 50 degrees left
rotation (80 normal), and 50 degrees right rotation (80
normal), bilateral upper extremity strength within normal
limits, positive Spurling's test, and normal sensation
and reflexes. Dr. Chapman's impression was cervical disc
disorder without myelopathy and cervical radiculopathy, and
Orsburn received a steroid injection. (AR 324, 341).
August 2, 2011 Orsburn saw Dr. Chapman for a follow up. (AR
321). She reported the steroid injection helped 40% for 3
weeks and that currently her pain was 25% better. Orsburn
rated her pain 7/10 and said the injection reduced the
numbness. Dr. Chapman assessed cervical disc disorder without
myelopathy and cervical radiculopathy and recommended she
take pain medications as needed.
September 8, 2011 letter from Dr. DiGiacinto states that
Orsburn was continuing to work but had neck and lower back
pain and paresthesias in the hands. (AR 333). He recommended
chiropractic treatment and acupuncture, and noted she had
some improvement from the epidural shot in her neck and
recommended a second injection.
September 16, 2011 Orsburn saw Dr. Chapman for a follow up
and reported pain with variable intensity, currently 8/10.
(AR 344). She described her pain as constant and improved
with medications. Dr. Chapman noted she was “doing well
for some time and recently had a return of pain.” He
administered another injection. (AR 345).
September 27, 2011 Orsburn had an evaluation for acupuncture.
(AR 347). She reported chronic neck pain radiating to the
arms and hands, sometimes 9/10 and usually 4/10. Her back
pain was 5/10 on average and 8/10 at worst. She also reported
left shoulder pain and bilateral knee pain. She received
treatments on October 6, October 20, and November 17, 2011,
and January 12, 2012. (AR 307, 312, 359, 366).
October 17, 2011 progress report from Dr. Barron opined that
Orsburn had a 100% temporary impairment and could not return
to work. (AR 301). Orsburn reported numbness in her left
thigh and tingling in her left arm and hand. (AR 302). On
exam she had full ROM in the right shoulder, strength 5/5,
neck tenderness but full ROM, and diminished motion and
diffuse tenderness in the cervical spine. (AR 302).
November 17, 2011 progress report from Dr. Barron opined that
Orsburn had a 100% temporary impairment and that she could
not return to work because she had too many symptoms. (AR
297). Orsburn reported left neck, shoulder, and lower leg
pain. (AR 298). On exam, she had diminished motion and
diffuse tenderness in the cervical spine, positive
Spurling's maneuver with radiating radicular pain, and
weakness. (AR 298).
December 15, 2011 Orsburn saw Dr. Chapman and reported pain
9/10 in her neck, back, and arms, and numbness in her left
arm and leg. (AR 319). She stated acupuncture helped with the
pain but not the numbness. On exam, the lumbar paraspinal
muscle was tender to palpation, negative SLR bilaterally, LE
strength 5/5, positive Spurling's test, and normal
strength in upper extremities. Dr. Chapman assessed cervical
disc disorder without myelopathy, cervical radiculopathy,
lumbar disc disorder without myelopathy, and lumbar
radiculopathy. (AR 320).
January 12, 2012 Orsburn saw Dr. Chapman for a follow up and
reported her pain had worsened. (AR 357). She reported
numbness and a burning sensation on the left side of her
body, a cringing feeling in her spine, and carrying heavy
objects caused a buzzing and itching sensation in her arms,
especially the left.
January 31, 2012 Orsburn saw Dr. Chapman for a follow up and
reported her pain was constant with the same intensity. (AR
361). Her neck pain was numbing and burning, 8/10, and
radiating into the left side of her face and arms. Her back
pain was sharp and aching, and aggravated by sitting,
standing, and walking. Dr. Chapman noted she had a positive
response to the last injection and administered another one.
(AR 361- 63).
February 23, 2012 Orsburn saw Dr. Chapman and reported the
injection helped 80% and currently her pain was 30% better
and a 5/10. (AR 365).
February 23, 2012 progress report from Dr. Barron states that
Orsburn cannot return to work because she is still
symptomatic. (AR 293). Orsburn reported tingling in the left
side of her body and neck pain. (AR 294). On exam, she had
full ROM in her right shoulder and neck, 5/5 strength, neck
tenderness, and diminished motion and tenderness in the
cervical spine. (AR 294).
April 30, 2012 Orsburn saw Dr. Foote and reported numbness on
the left side of her body, itching and burning sensations,
twinges, and difficulty lifting her left arm. (AR 485).
Findings on exam included: some decrease in neck rotation to
the left but otherwise normal ROM cervical spine; some
give-way on muscle strength testing on the left but no true
weakness; diminished but symmetrical tendon reflexes; normal
sensory and coordination; normal flexion lumbar spine; and
pain with passive ROM of left shoulder and left hip, but
motion not limited. (AR 486). Dr. Foote's assessment was
that her symptoms indicated neck and left arm pain, back and
left hip pain, and headaches. (AR 487). He refilled her
prescriptions and recommended PT and acupuncture.
7, 2012 Orsburn had a physical therapy evaluation. (AR 284).
She complained of thoracic region pain, 9/10, reported the
left side of her body felt different and less sensitive, and
that she could sit for one hour. The therapist noted that the
evaluation findings were mixed because considerable energy
was required to keep Orsburn focused. (AR 285). He stated
that for the most part, neither cervical nor lumbar spine
active ROM testing reproduced her complaints of pain, that
results of strength testing on the left side were
questionable, and that screening for light touch testing was
unreliable because Orsburn flatly stated that her entire left
side was different, even before beginning the test. (AR 285).
8, 2012 workers' compensation form states that “Dr.
Foote continues her off-work status, not taken off work by
Dr. Foote.” (AR 494). Another workers' compensation
form completed by Dr. Foote on May 30, 2012 states that
Orsburn has a 5% temporary impairment based on the nerve
study showing mild carpal tunnel syndrome and that she
cannot return to work because of ongoing pain. (AR 500). The
fax cover sheet states that “Dr. Foote supports the 60%
disability already in place by Dr. Alton Barron in New York.
The 5% is in addition.” (AR 495).
August 3, 2012 Orsburn saw Dr. Ibrahimi for left side
numbness and weakness, headaches, and back pain. (AR 399).
Findings on exam included neck supple with full ROM, strength
4/5 left arm and leg, left foot drop 4/5 with weakness with
inversion and eversion, reduced sensation left shoulder and
calf, reflexes bilaterally symmetrical, and gait leaning to
left side. (AR 400). Dr. Ibrahimi assessed displacement of
cervical and lumbar and intervertebral disc without
myelopathy, disturbance of skin sensation, and thoracic or
lumbosacral neuritis or radiculitis. (AR 401).
August 3, 2012 note from Dr. Moher states that Orsburn had
been under his care and was 100% disabled for at least 12
months. (AR 336).
August 14, 2012 Orsburn saw Dr. Berens for an initial
consultation. (AR 380). She reported chronic pain for years,
worse with exertion, and better in a supine position. (AR
381). Findings on exam included motor strength 5/5, abnormal
ROM, facet loading positive, SLR negative, and abnormal gait.
Orsburn reported that injections were effective at reducing
her symptoms and Dr. Berens recommended she receive another
one. (AR 382-83).
August 21, 2012 PT progress report notes that Orsburn met her
goals of being independent with her home exercise program and
sleeping without discomfort, and that she substantially met
her goals of standing and performing daily activities for
30-45 minutes and walking for 30-45 minutes, although her
pain level varied from day to day. (AR 276). The therapist
noted that her cervical and lumbar spine and left shoulder
ROM varied widely from treatment to treatment. (AR 277).
September 7, 2012 a PT discharge summary notes that Orsburn
completed 24 sessions and partially met her goals to increase
left shoulder elevation, demonstrate cervical spine active
ROM within functional ranges, and demonstrate lumbar spine
active ROM within functional ranges with a 0-3/10 complaint
of pain. (AR 278-79). Orsburn did not meet her goal to
tolerate daily activities with minimal complaints of pain and
reported she could only tolerate a position or activity for a
short duration before pain forced her to stop. (AR 279). The
therapist noted that while she reported pain as high as
9.5/10 at her last session, she could tolerate her home
exercise program better and a limited period of swimming. He
also noted that her left ankle-foot orthosis “made a
remarkable improvement in her gait sequence, eliminating her
left foot-drop and notably decreasing her LBP and left LE
pain.” The therapist opined that PT had offered her the
most it could and recommended a team pain management
December 6, 2012 progress report from Dr. Barron opined that
Orsburn had a 100% temporary impairment and that she could
not return to work because she was still very symptomatic.
(AR 289). Orsburn reported that her left side of her body
still felt like she had a stroke and that PT only provided
temporary relief. (AR 290). On exam, Orsburn had diminished
and painful neck ROM, positive Spurling's maneuver and
radiating radicular pain, and left shoulder weakness with
internal and external rotation and mildly diminished motion
due to pain. (AR 290).
December 11, 2012 Orsburn saw Dr. Chapman for a follow up on
neck pain and a cervical injection. (AR 316-17). She reported
pain 10/10 and described it as stabbing, burning, sharp,
aching, and dull, and said that any movement caused pain and
that it improved with injections. (AR 316). On exam, Orsburn
had a normal gait, strength 5/5, positive Spurling's test
and facet loading maneuvers, and intact sensation and tendon
reflexes. (AR 316). Cervical ROM flexion was 30 degrees
(normal 50), extension 15 degrees (normal 60), left rotation
45 degrees (normal 80), and right rotation 30 degrees (normal
80). Orsburn received another injection. (AR 369).
March 4, 2013 Orsburn saw Dr. Schroeder for a neurology
consult. (AR 509). Findings on exam included normal strength,
reflexes, and sensation. Dr. Schroeder assessed mild
degenerative changes to the cervical spine, “certainly
nothing here to be addressed from a surgical manner.”
On March 25, 2013 Orsburn saw Dr. Ibrahimi for a follow up.
(AR 403). Findings on exam included neck supple with full
ROM, left arm and leg strength 4/5, left foot drop 4/5,
reduced sensation left calf and shoulder, and gait leaning to
left. (AR 404-05). Dr. Ibrahimi noted Orsburn had a good
response to the injections but still had significant residual
pain. (AR 405).
March 28, 2013 Orsburn saw Dr. Berens for an injection. (AR
384-86). She reported partial benefit for a few months from
her last injection. (AR 387). On exam, motor strength was
5/5, ROM abnormal, SLR negative, and gait normal. (AR 386).
5, 2013 MRI of the left hip showed “tiny focus of
intermediate signal within the superior labrum, coronal PD 11
of 21.” (AR 398).
27, 2013 Orsburn saw Dr. Berens for another injection. (AR
388-89). She reported excellent relief and 75-80% benefit for
the past few months since her last injection.
September 9, 2013 note from Dr. Moher states that Orsburn has
been under his care for chronic pain syndrome and disc
disease/arthritis; symptoms are chronic and expected to last
more than one year. (AR 413). He opined that Orsburn could
sit for one hour at a time, no more than four hours a day;
stand for 15 minutes at a time, no more than four hours per
day; walk for 15 minutes at a time, no more than 2 hours per
day; lift and carry no more than 10 pounds; and may be
limited in concentration/persistence secondary to
23, 2014 Orsburn saw Dr. Berens for her neck pain. (AR 423).
She had significant relief for about six months after her
injection in June 2013, but moderately severe pain for the
past few months. Dr. Berens administered another injection.
November 11, 2014 Orsburn saw Dr. Ibrahimi for numbness in
her arms. (AR 521). Findings on exam included neck supple
with full ROM, left arm and leg strength 4/5, left foot drop
4/5, reduced sensation left calf and shoulder, reflexes
symmetrical, and gait leaning to the left. (AR 522). Dr.
Ibrahimi noted Orsburn had good response to injections but
still had significant residual pain. (AR 523).
August 14, 2015 letter from Dr. DiGiacinto notes that Orsburn
reported restricted activity because of neck and back pain,
restricted range of motion, and wore a foot brace but still
had discomfort walking. (AR 555). On exam she had pain with
neck rotation, back pain with left SLR, loss of sensation,
and marked ...