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Orsburn v. Commissioner of Social Security Admiistration

United States District Court, D. Arizona

August 24, 2018

Terry Orsburn, Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.

          ORDER

         Plaintiff 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).

         Before 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.

         I. Procedural History

         Orsburn 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).

         Orsburn's 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.

         II. Factual History

         Orsburn 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).

         A. Treating Physicians[1]

         On 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).

         On 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).

         An 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).

         A June 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.

         A June 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 305).

         On June 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).

         On 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.

         A 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.

         On 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).

         On 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).

         An 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).

         A 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).

         On 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).

         On 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.

         On 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).

         On 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).

         A 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).

         On 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.

         On May 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).

         A May 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[2] 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).

         On 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).

         An 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).

         On 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).

         An 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).

         On 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 approach.

         A 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).

         On 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).

         On 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).

         On 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).

         A June 5, 2013 MRI of the left hip showed “tiny focus of intermediate signal within the superior labrum, coronal PD 11 of 21.” (AR 398).

         On June 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.

         A 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 pain/fatigue.

         On July 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. (AR 424).

         On 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).

         An 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 ...


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