United States District Court, N.D. California
ORDER RE MOTIONS FOR SUMMARY JUDGMENT RE: DKT.NOS.
C. SPERO CHIEF MAGISTRATE JUDGE.
Susan McLaren brings this action appealing the final decision
of Defendant Andrew Saul, Commissioner of Social Security
(the "Commissioner"),  denying McLaren's
application for disability benefits. The parties have filed
cross motions for summary judgment pursuant to Civil Local
Rule 16-5. For the reasons discussed below, McLaren's
motion is DENIED and the Commissioner's motion is
Plaintiffs Medical History
McLaren is a 57-year-old woman with a master's degree in
Industrial Organizational Psychology and an RN license.
Administrative Record ("AR," dkt. 13) at 35.
McLaren, a nurse, sustained a back injury on October 26, 2009
when an obese patient fell on top of her as she lifted the
patient off the commode to a crash cart. Id. at 340,
344. She stopped working on August 2, 2011, id. at
283, and did not engage in substantial gainful activity
("SGA") between then and December 31, 2013, the end
of her alleged period of disability. Id. at 944. She
alleges disability due to "torn rotator cuff-shoulder,
back injury, bilateral knees; left hip fracture and severe
osteoarthritis; left rotator cuff tear, impingement,
tendonitis; 5 blown out disks lumbar-back, severe
osteoarthritis; bilateral knee injuries." Id.
October 30, 2009, a few days after the accident, McLaren saw
her primary treating physician Dr. M. Michael Mahdad. He
The patient is complaining of continuous left shoulder pain;
she cannot lift that arm up. She reports intermittent
numbness in the left arm; neck pain, especially when she
turns her head to the sides.
The patient has low back pain & stiffness. She complains
of bilateral knee pain, especially under the knee-caps ....
1. Left shoulder sprain; possible rotator cuff
syndrome or impingement syndrome.
2. Cervical sprain/strain, with left cervical radicular
3. Lumbar strain.
4. Bilateral knee sprains.
I do suggest for the patient to continue with Physical
Therapy-to include her shoulder, neck and
lumbar spine. She will continue with Naprosyn and
muscle relaxants at this time.
Id. at 381-83. Dr. Mahdad noted in November of 2009
that McLaren's back pain, knee pain, and arm paresthesia
were improving with physical therapy but indicated that
McLaren's "main concern and complaint remains the
left shoulder; at times, there is a jabbing pain in the
shoulder, and she has trouble with movements of that
arm-especially at-or-above-shoulder level." Id.
at 379. On December 14, 2009, McLaren underwent an MRI that
revealed "Rotator cuff tendinitis and/or incomplete
under surface tear" and "Hypertrophic AC joint
degenerative change with impingement morphology."
Id. at 385.
reported to another doctor that in January of 2010, she saw
Dr. Scott Fisher, an orthopedic surgeon at St. Joseph
Hospital, who reviewed the MRI and told McLaren that her arm
was "inoperable due to the inflammation and the limited
range of motion." Id. at 351. She then
underwent "a second course of therapy to the left
shoulder 2-3 times per week at St. Joseph Hospital, per Dr.
Mahdad's recommendation." Id.
Steven Silbart, a medical examiner working in connection with
McLaren's workers' compensation claim, physically
examined McLaren on February 23, 2010 and found 5/5 muscle
strength with intact sensation and reflexes. Id. at
356. McLaren expressed "discomfort with deep
palpation" in her cervical spine, her left shoulder, the
thoracolumbar spine, and her left knee. Id. at
355-58. The examination found "no evidence of fracture
or dislocation" in any of the places where McLaren
reported having pain. Id. at 359. Dr. Silbart
diagnosed McLaren with "cervical spine, left shoulder,
thoracolumbar spine, bilateral knee strain, [and] Impingement
Syndrome left shoulder." Id. at 360. McLaren
noted that her right knee pain "resolved" and that
her left knee pain was "intermittent" and
"moderate in degree." Id. at 355. On a
self-reported pain severity questionnaire that same day,
McLaren reported that her current pain was a two out often
and her average daily pain was two or three out often, that
it was "[i]mpossible to lift 10 pounds," and that
her pain "[d]oes not restrict ability to sit for 1/2
hour." Id. at 363. She answered eight out often
when asked whether her pain interfered with her daily
Mahdad examined McLaren again in March of 2010 and noted a
"left shoulder inflammatory process-most likely
tendinopathy; possible partial rotator cuff tear, per MRI
scan." Id. at 371. After a visit in October of
2010, Dr. Mahdad recorded an impression of "1. Lumbar
sprain[;] 2. Bilateral knee sprains[; and] 3. History of left
shoulder tendinopathy." Id. at 366.
December of 2010, McLaren completed a different pain
questionnaire as part of her initial application for
benefits. Id. at 231-34. She indicated that she was
taking Naproxen and Motrin "when desperate."
Id. at 232. These medications relieved the pain for
an hour, but caused her to suffer "GI distress,
nausea." Id. at 232-33. She also used ice packs
and heat to relieve the pain. Id. at 233. When asked
if any surgery was scheduled, she wrote that surgeons were
"unable to operate on [left] shoulder, to [sic] much
inflammation, damage." Id. McLaren described
"difficulties with walking or sitting to [sic]
much." Id. at 233-34. "Activities are
limited," she wrote, but she could do some activities on
some days for "15 minutes or more." Id.
She reported that she was "able to do errands such as
going to the Post Office or grocery store without
assistance" and was "able to do light housekeeping
chores (i.e. dusting, cooking, etc.) without
assistance." Id. at 234. She could walk, stand,
and sit for fifteen minutes at a time. Id.
reported an allergic anaphylactic reaction to ibuprofen on
February 19, 2011. Id. at 497. She did not report
any dizziness during that time. See generally Id. at
McLaren was undergoing physical therapy. On December 17,
2010, her physical therapist summarized: "[p]atient
states pain level has decrease [sic] with PT intervention.
Pain is at a low of 2/10. Pain level can reach to 7/10 at
times." Id. at 531. McLaren later reported back
pain and spasms "with trying to tie her shoes and with
walking fast and prolonged walking." Id. at
November of 2010 and April of 2011, McLaren reported that her
"[l]umbar back injury became worse, resulting in gait
disturbance involving (R) foot." Id. at 258.
She said that her pain made her "unable to work,
difficulty with tyingshoes [sic], bending over, sitting,
standing, and walking for extended periods of time."
Id. at 261. On an exertional questionnaire, McLaren
reported that she could drive "20-30 minutes, but
generally 10-20 minutes." Id. at 266. She went
grocery shopping weekly and carried a ten- to fifteen-pound
bag of groceries to her car. Id. She also noted that
she "had an anaphalactic [sic] allergic reaction to
Motrin 12/10/2010" and was "[u]nable to take pain
meds or anti-inflammatory at this time." Id. at
267. She further documented difficulty walking: "I would
like to walk daily but am unable to do so. If I walk around
the neighborhood I [illegible] pain before, during, &
after. I wake up at night with L knee pain, that can persist
for days." Id. at 265.
August 5, 2011 MRI of McLaren's lumbar spine revealed
"[m]oderate multilevel lumbar spondylosis and degenerative
disk disease, resulting in varying degrees of spinal canal or
neural foraminal stenosis." Id. at 828. On
August 22, 2011, McLaren returned to Dr. Mahdad, who
described an MRI of her lumbar spine as indicating some disc
protrusion along with "mild spinal canal stenosis and
mild-to-moderate, bilateral neural foraminal stenosis."
Id. at 555. Dr. Mahdad wrote, "The
patient is not able to perform her work duties as a
Nurse, due to her low back symptoms, and she is considered
Temporarily Totally Disabled."
Id. at 556 (emphasis in original).
October 9, 2011, Dr. Bhatia, an orthopedic spinal surgeon at
UC Irvine, wrote that McLaren reported "good
improvements" with "conservative treatment"
but that she was now experiencing "tingling sensation in
her legs bilaterally .... This happened twice while she was
walking." Id. at 628. On their next visit on
October 27, 2011, he documented that McLaren's pain got
worse after a physical therapist placed her in traction.
Id. at 650. "If her symptoms do not
improve," Dr. Bhatia wrote on November 8, 2011,
"she may need to undergo surgical intervention for an
L5-S1 posterior spinal fusion." Id. at 647.
November 7, 2011, McLaren underwent a third MRI which
indicated some disc tears and bulging but overall found
"no significant spinal stenosis and other areas of the
neural canals are normal. Direct comparison with the previous
study of 08/05/2011 shows no change." Id. at
760-61. Nine days later on November 16, 2011, Dr. Mahdad
noted that "patient's symptoms became worse after
the traction of the lumbar spine" and that Dr. Bhatia
had requested a third MRI. Id. at 559. Dr. Mahdad
appears to have not been aware that the MRI had already
occurred. See Id. ("The repeat MRI scan of the
lumbar spine apparently has now been authorized-just
waiting for the written confirmation."). He
added, "The patient is not able to work
at this time." Id. at 560 (emphasis in
visit on April 12, 2012, Dr. Bhatia echoed his earlier
assessment that McLaren might need surgery: "The patient
may need to undergo surgical intervention for L5-S1 posterior
spinal decompression interbody fusion instrumentation if her
symptoms do not improve with conservative treatment."
Id. at 644. McLaren's symptoms did improve.
See Id. at 641 ("Now she is walking
approximately 30 to 40 minutes a day, which is much more than
she was able to do previously. She is also seen by pain
management service and was started on Lyrica and Lidoderm
patches, which are helping a lot with her pain."). On
July 24, 2012, Dr. Bhatia recorded that "the patient may
need to undergo surgical interventions for lumbar fusion at
¶ 5-S1 sometimes [sic] in the future, but for now we
will have her continued on conservative treatment."
April 12, 2012 x-ray of McLaren's hips and lumbar spine
showed "minimal degenerative changes at ¶ 3/L4 and
L5/S1." Id. at 757, 564. The report also noted
degenerative changes in McLaren's hips which were
"significantly worse on the left side," as well as
imaging "suggestive of bone-on-bone contact" in the
hip joint. Id. A second x-ray on July 18, 2012
revealed "mild generalized osteopenia" and
"minor left hip superior joint space narrowing."
Id. at 562, 668. Id. Otherwise, the rest of the
x-ray appeared "within normal limits." Id.
The radiologist's overall impression was "[m]ild
left hip osteoarthrosis." Id.
underwent a comprehensive pain management consultation on May
15, 2012 with Dr. Raif Iskander, DC, a chiropractor and
physician's assistant, at Newport Beach Headache and
Pain. Id. at 590-95. McLaren complained of seven out
often left shoulder pain and five out often pain with
radiation in her left knee. Id. at 590-91. She
estimated "that her daily activities are limited at
80%." Id. at 591. She listed medications
Singular, Synthroid, and Soma, and reported allergies to
ibuprofen, prednisone, and sulfa. Id. at 592. Dr.
Iskander noted arthritis in McLaren's left hip, as well
as limb pain and disc dislocations. Id. at 593.
McLaren reported "good results with Lyrica" and
increased her dose. Id. at 596. The recorded
"review of systems" indicated that she reported
"no dizziness." Id. at 616. Her pain had
also decreased to a five out of ten in both her shoulder and
her knee. Id. at 596. On August 30, 2012, Dr.
Iskander recorded that McLaren reported "no
dizziness." Id. at 616.
also saw Dr. Daniel Oakes, an orthopedic surgeon. At their
initial visit on July 18, 2012, Dr. Oakes wrote that, in his
she does have end-stage degenerative joint disease of the
left hip. I think the best treatment options [sic] is the
left hip arthroplasty. She seems somewhat surprised that
surgery would be a recommendation given her young age. In
spite of her age, I think given her examination, history, and
radiographic findings that she is best treated with an
arthroplasty surgery when she feels that she is ready. ... I
have been happy to prescribe her outpatient physical therapy
prescription to work on range of motion strengthening of the
Id. at 665. McLaren improved with physical therapy,
leading Dr. Oakes to opine on October 17, 2012:
At Ms. McLaren's initial consultation, I had felt that
she was a candidate for a left total hip arthroplasty ....
Fortunately, she has made strides with the therapist....
I again discussed with Ms. McLaren that she does have
end-stage degenerative joint disease of the left hip. I think
ultimate treatment would be a left total hip arthroplasty
when she feels ready.
Id. at 658-59. Dr. Oakes ordered a follow-up x-ray
that same day, which found mild left hip osteoarthrosis.
Id. at 667.
Silbart examined McLaren a second time on September 4, 2012.
He found that McLaren had discomfort and some decreased range
of motion in her left hip, but that she was "able to sit
comfortably with hip flexed to 90°" and had full
muscle strength in her lower extremities and in both
shoulders. Id. at 843-47. McLaren reported to Dr.
Silbart that her physical therapy had been beneficial.
Id. at 847.
underwent a multi-disciplinary physical therapy evaluation at
Orange County Pain and Wellness on October 31, 2012. When
asked described her daily routine, she replied "that she
performs her physical therapy home exercise program for about
90 minutes every other day, and on alternate days walks on
flat ground for 35-60 minutes. She stated that she is able to
exercise on the elliptical machine for 20 minutes
occasionally." Id. at 675. She stated that her
pain "can vary from bad to just okay. She states that
the pain level can get up to a 10 with increasing activity
.... She cannot kneel, she cannot stoop, she cannot cross her
legs, she cannot bend over fully at the waist without bending
at the knees." Id. at 688. Her strength scores
were all at least "3-" out of five with some scores
at four or five out of five; however, the examiner noted that
McLaren "did not seem to make much effort to resist
examiner's pressure during muscle tests, even when asked
repeatedly to do so." Id. at 676-77'. She
also "refused to allow the examiner to passively flex
her L hip . . . presumably to guard from the pain."
Id. at 678. The examiner noted that McLaren
"has high motivation to return to work, she demonstrates
good potential to achieve a significantly higher level of
functional capacity." Id.
evaluator noted that McLaren:
is a surgical candidate, but she has elected to not have the
surgery performed since she is not convinced that she needs
it nor has it been determined that it would change her
conditions [sic] outcome if performed. . . .
(4) The patient is not a candidate where surgery or other
treatments would clearly be warranted.
She is currently a surgical candidate in a sense that her
orthopedic doctor suggested that she have surgery, but it is
only optional. It was not recommended that she have surgery
immediately and the option was hers for the choosing. She has
chosen to not have any surgery at this time.
Id. at 689, 691. The evaluation indicated that
McLaren was highly active before her injury, was unable to
engage in outdoor activities after the injury, and was
motivated to return to work but fearful that she might not be
able to. Id. at 688, 691. The evaluator noted that
McLaren was a very good candidate for the interdisciplinary
Functional Restoration Program ("FRP").
completed another pain and symptom questionnaire on November
7, 2012. She wrote that the pain was brought on by
"activity and sitting" and that rest relieved the
pain "after a few hours." Id. at 317. She
now reported that she was taking Lyrica and Flexeril daily
and had been since May of 2012. Id. She said that
both medications caused dizziness. Id. She tried
using a TENS unit,  but it "was not helpful."
Id. at 318. "Physical therapy is what always
helps." Id. Her self-reported ability to walk
varied between "good days" and "bad
days," but she could stand up to half an hour and sit
for up to forty-five minutes at a time. She wrote that she
needed help with household chores and reported
"difficulty with stooping, bending, squatting."
Id. at 319. She also reported being unable to dust.
started FRP on January 7, 2013 and successfully completed the
program on February 9, 2013. See generally Id. at
694-724 (records from FRP). During the program, she continued
to see Dr. Bhatia, who reported that McLaren's pain
surged on January 25, 2013 "to the point where she was
not able to do the [FRP] exercises." Id. at
733-34. He further noted that "the patient appears to
have had re-exacerbation of her back pain and left leg
sciatica [and] may have suffered worsening disc herniation
and nerve compression versus a severe lumbar strain,"
and that she was taking Norco and Lyrica and using Lidoderm
patches. Id. at 734.
the FRP physical therapist documented full participation and
even improvement. See Id. at 713-17. The physical
therapist wrote that:
Susan states that she is having a flare up in her lower back
from doing some stretches .... She is reporting a flare up of
the left lower back, buttock and leg pain. She states she
went to Dr. Bhatia for evaluation and the PA told her that
she 're-injured' her nerve. No. intervention was
recommended and she was told that it should resolve in 1-2
weeks. By Friday 2/1/13, she was already feeling much better.
Id. at 714. The physical therapist also noted that
that McLaren's "[s]ymptoms and complaints seem to be
magnified compared to diagnostic findings and exam
findings." Id. at 720. The staff of FRP
documented "slow progress in physical therapy" that
led to McLaren "walk[ing] on the treadmill for 40
minutes." Id. at 719. McLaren also reported new
"headache/neck pain radiating to upper extremities [and]
tingling in fingers" on a disability appeal form dated
March 29, 2013. Id. at 322. She reported using
Lidoderm patches, Lyrica, and Robaxin, but did not report any
side effects. Id. at 324.
returning to Dr. Bhatia after completing FRP, McLaren
reported that "[t]he training helped with the left hip
and left shoulder overall pain." Id. at 730.
However, he also noted that "she has had worsening neck
pain, lower back pain and continued left leg sciatica,"
and that "[s]he continues to be quite disabled."
Id. at 730-31.
May evaluated McLaren's medical record as part of her
claim for disability insurance benefits on February 12, 2013.
Id. at 62-72. Dr. May found McLaren "partially
credible," writing that her statements, her daily
activities, and the objective findings were not consistent,
and that McLaren reported an ability to stand for only half
an hour and a variable ability to sit. Id. at 69.
While McLaren had some exertional limitations, Dr. May found
that she could occasionally lift or carry 20 pounds, and
frequently lift or carry 10 pounds. Id. She could
sit and stand with normal breaks for "[a]bout 6 hours in
an 8-hour workday." Id. In addition, while she
had postural limitations, Dr. May found that McLaren could
occasionally climb ramps, stairs, ladders, ropes, and
scaffolds, as well as balance, stoop, kneel, crouch, and
crawl. Id. at 70. While her left overhand reaching
was limited, Dr. May did not find that McLaren had any other
manipulative limitations. Id. She was to avoid
uneven terrain, concentrated exposure to extreme cold, and
even moderate exposure to "[h]azards (machinery,
heights, etc.)." Id. at 71. Ultimately, Dr. May
concluded that McLaren could return to some form of light
work, including her past work, and was not disabled.
Id. at 72-73.
Chan reviewed McLaren's documents as part of her request
for reconsideration on June 25, 2013. Id. at 75-89.
Dr. Chan echoed Dr. May's finding of partial credibility.
Id. at 84. Dr. Chan opined that McLaren was capable
of sustaining light work and that her prior work experience
was transferable, although she could not perform her past
work. Id. at 88. Dr. Chan ultimately determined that
McLaren "would still be capable of work activities"
and was therefore not disabled. Id. at 89.
October 28, 2013, Dr. Bhatia completed a Work/School Status
report in which he cleared McLaren to return to work
"with the following restrictions: No. sitting or
standing > 30 min to 1 hr.[;] No. lifting, pushing, or
pulling > 8-10 lbs[;] No. repetitive twisting and
bending." Id. at 935.
Bhatia reported on November 5, 2013 that McLaren suffered
[D]oing different exercises with physical therapy, trying to
push her limits and the next day had increased pain in the
left buttock .... She reports that she was not able to lift
her leg or dorsiflex her foot for a couple of days. . . .
Currently she rates her pain as 7-8 on a scale of 1-10 and is
made worse with prolonged sitting, lying down and sleeping
.....The patient reports that these symptoms are different
than what she has had in the past and they feel much worse.
Id. at 938. Nevertheless, Dr. Bhatia reported that
McLaren had 4/5 muscle strength in her lower left side.
Id. Dr. Bhatia ordered another MRI, and noted that
"radiographs of the lumbar spine obtained today shows
worsening intervertebral disc disease of the lumbar spine at
¶ 5-S1 .... There is back and disc phenomenon at this
level with severe foraminal stenosis." Id. The
MRI took place on November 19, 2013 and showed 2 to 3 mm disc
bulges on L5-S1, L4-5, L3-4, Ll-2, and T12-L1. Id.
at 1164-65. The radiologist identified little to no change
from the comparison MRI from November of 2011. Id.
at 1165; see also Id. at 760-761 (results of the MRI
dated November 11, 2011).
being forced to stop physical therapy due to insurance
denial, McLaren again told Dr. Bhatia that her condition