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McLaren v. Saul

United States District Court, N.D. California

December 27, 2019

SUSAN MCLAREN, Plaintiff,
v.
ANDREW SAUL, Defendant.

          ORDER RE MOTIONS FOR SUMMARY JUDGMENT RE: DKT.NOS. 18, 21

          JOSEPH C. SPERO CHIEF MAGISTRATE JUDGE.

         I. INTRODUCTION

         Plaintiff Susan McLaren brings this action appealing the final decision of Defendant Andrew Saul, Commissioner of Social Security (the "Commissioner"), [1] 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 GRANTED.[2]

         II. BACKGROUND

         A. Plaintiffs Medical History

         Susan 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. at 62.

         On October 30, 2009, a few days after the accident, McLaren saw her primary treating physician Dr. M. Michael Mahdad. He wrote:

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 ....
IMPRESSION
1. Left shoulder sprain; possible rotator cuff syndrome or impingement syndrome.
2. Cervical sprain/strain, with left cervical radicular symptoms.
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.

         McLaren 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.

         Dr. 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 activities. Id.

         Dr. 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.

         In 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.

         McLaren 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 497-525.

         Meanwhile, 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 540, 543.

         Between 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.

         An August 5, 2011 MRI[3] of McLaren's lumbar spine revealed "[m]oderate multilevel lumbar spondylosis[4] and degenerative disk disease, resulting in varying degrees of spinal canal or neural foraminal stenosis."[5] 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).

         On 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.

         On 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 original).

         At a 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." Id.

         An 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.[6] 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.

         McLaren 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.

         McLaren also saw Dr. Daniel Oakes, an orthopedic surgeon. At their initial visit on July 18, 2012, Dr. Oakes wrote that, in his opinion:

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 left hip.

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.

         Dr. 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.

         McLaren 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.

         An 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").

         McLaren 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, [7] 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. Id.

         McLaren 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.

         Meanwhile, 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.

         Upon 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.

         Dr. R. 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.

         Dr. D. 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.

         On 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.

         Dr. Bhatia reported on November 5, 2013 that McLaren suffered another setback:

[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).

         After being forced to stop physical therapy due to insurance denial, McLaren again told Dr. Bhatia that her condition ...


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