Ortiz v. Colvin

Filing 39

ORDER denying 34 Motion to Amend/Correct. Signed by Judge H Russel Holland on 11/20/15.(KGM)

WO

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

MICHELLE B. ORTIZ,

)
)
Plaintiff,
)
)
vs.
)
)
CAROLYN W. COLVIN, acting
)
Commissioner, Social Security
)
Administration,
)
)
Defendant.
)
__________________________________________)

No. 2:14-cv-0567-HRH

ORDER
Defendant moves1 to alter or amend the court’s judgment, dated August 3, 2015. This
motion is opposed.2 Oral argument was not requested and is not deemed necessary.
Background
On March 24, 2010, plaintiff filed applications for disability benefits under Titles II and
XVI of the Social Security Act. Plaintiff’s applications were denied initially and upon
reconsideration. After a hearing on June 8, 2012, an administrative law judge (ALJ) denied
plaintiff’s claims. On January 29, 2014, the Appeals Council denied plaintiff’s request for

1

Docket No. 34.

2

Docket No. 37.
-1-

review, thereby making the ALJ’s July 5, 2012 decision the final decision of the Commissioner. On March 19, 2014, plaintiff commenced this action in which she asked the court to
find that she was entitled to disability benefits.
Plaintiff argued that the ALJ erred in finding her pain and symptom statements less
than credible and defendant agreed that the ALJ’s credibility findings were insufficient.3 The
parties disagreed as to whether this error required a remand for further proceedings or a
remand for an award of benefits. The court concluded that a remand for an award of benefits
would be appropriate.4 In reaching this conclusion, the court rejected defendant’s argument
that further proceedings would be appropriate so that the ALJ could obtain a consultative
examination to help the ALJ assess the severity and functional effects of plaintiff’s
fibromyalgia.5 The court explained that “[i]f the ALJ felt that a consultative examination was
necessary to make a credibility finding, he could have obtained one.”6 The court also rejected
defendant’s argument that further proceedings were necessary because the record contained
significant evidentiary conflicts between plaintiff’s pain and symptom statements and the

3

Opposed Motion for Remand at 4, Docket No. 27.

4

Order at 11 & 14, Docket No. 31.

5

Id. at 9-10.

6

Id. at 10.
-2-

medical evidence.7 Citing to Moisa v. Barnhart, 367 F.3d 882 (9th Cir. 2004), the court stated
that defendant should not have another opportunity to show that plaintiff was not credible.8
The court also found that the ALJ had erred in rejecting the only opinion in the record
from a treating physician, that of Dr. Bhalla.9 The court determined that none of the reasons
the ALJ gave for rejecting Dr. Bhalla’s opinion were legitimate.10
The court found that plaintiff would be disabled if her statements and Dr. Bhalla’s
opinion were credited as true, based on the testimony of the vocational expert.11 The court
then considered whether the record as a whole created serious doubt that plaintiff was
disabled and concluded that it did not.12
Judgment remanding this matter for an award of benefits was entered on August 5,
2015.13 Pursuant to Rule 59(e), Federal Rules of Civil Procedure, defendant now moves to
alter or amend the judgment, arguing that the court committed clear error in concluding that
the ALJ erred in rejecting the opinion of Dr. Bhalla and in concluding that a remand for an

7

Id. at 10-11.

8

Id. at 11.

9

Id. at 12-14.

10

Id. at 12-14.

11

Id. at 8 & 14.

12

Id. at 14.

13

Docket No. 32.
-3-

award of benefits would be appropriate.
Discussion
“Amendment or alteration is appropriate under Rule 59(e) if (1) the district court is
presented with newly discovered evidence, (2) the district court committed clear error or
made an initial decision that was manifestly unjust, or (3) there is an intervening change in
controlling law.” Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001).
Defendant first argues that the court committed clear error in concluding that the ALJ
erred in rejecting Dr. Bhalla’s opinion. On June 4, 2012, Dr. Bhalla completed a Fibromyalgia
Residual Functional Capacity (RFC) Questionnaire, in which he opined that plaintiff had
moderately severe pain and fatigue which would frequently interfere with her attention and
concentration and that she would frequently “experience deficiencies of concentration,
persistence or pace resulting in failure to complete tasks in a timely manner....”14 Dr. Bhalla
also opined that plaintiff would not be able to sustain work on a regular and continuing
basis.15
The ALJ rejected Dr. Bhalla’s opinion “because it is unsupported by the greater
objective record”, “Dr. Bhalla provided no function-by-function analysis,” “the opinion is
vague and imprecise, and does not define the terms used”, and “the opinion is conclusory,

14

Admin. Rec. at 315-316.

15

Admin. Rec. at 316.
-4-

with little explanation....”16 The court concluded that none of these reasons were legitimate
reasons.
In her opening brief, defendant takes issue only with the court’s conclusion as to the
third reason. The court concluded that the third reason given by the ALJ for rejecting Dr.
Bhalla’s opinion was not legitimate because Dr. Bhalla’s “opinion was based on his and [PAC]
Nelson’s significant experience with plaintiff and supported by their treatment notes.”17
Defendant argues that this was clear error because the treatment notes do not render the
ALJ’s rejection of Dr. Bhalla’s opinion irrational. More specifically, defendant argues that the
treatment notes do not support Dr. Bhalla’s and Nelson’s endorsement of frequent problems
with attention and concentration.

Defendant acknowledges that the treatment notes

document some clinical findings such as positive trigger points and tenderness on
palpitation, but defendant argues that these clinical signs do not compel the conclusion that
plaintiff suffered frequent problems with attention and concentration. Rather, defendant
contends that the ALJ could rationally conclude that the treatment notes did not record any
clinical signs of frequent concentration and attention problems given that Nelson and Dr.
Bhalla never expressly assessed any cognitive limitations. Defendant argues that the ALJ is
required to look for supporting explanation and evidence offered with the opinion, rather

16

Admin. Rec. at 27.

17

Order at 13-14, Docket No. 31.
-5-

than looking to treatment notes, and that it is improper to infer the basis of a medical opinion
based solely on the presence of treatment notes.
The court did not commit clear error in finding that the ALJ’s third reason for rejecting
Dr. Bhalla’s opinion was not legitimate. Defendant is correct that an ALJ may properly reject
the opinion of a treating physician “‘if that opinion is brief, conclusory, and inadequately
supported by clinical findings.’” Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012)
(quoting Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009)). Defendant
is also correct that an “ALJ may ‘permissibly reject[ ] ... check-off reports that [do] not contain
any explanation of the bases of their conclusions.’” Molina v. Astrue, 674 F.3d 1104, 1111 (9th
Cir. 2012) (quoting Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996)). However, as the court
explained in its order, the Ninth Circuit has held that a check-box form, such as Dr. Bhalla
used, is entitled to weight if it is based on the physician’s “significant experience” with the
plaintiff and “supported by numerous records.” Garrison v. Colvin, 759 F.3d 995, 1013 (9th
Cir. 2014). Nelson and Dr. Bhalla had significant experience with plaintiff and their treatment
notes supported Dr. Bhalla’s opinion.18
In her reply brief, defendant argues that the first reason given by the ALJ, that Dr.
Bhalla’s opinion was unsupported by the greater medical record, was legitimate because the

18

As is the court’s practice with Social Security cases, it prepared a digest of the
medical evidence of record. That digest is attached as an appendix to this order. Dr. Bhalla’s
and PAC Nelson’s treatments notes can be found at pages 6-15 of the appendix.
-6-

sources who actually evaluated plaintiff’s cognitive functioning observed a “normal attention
span and concentration.” Defendant then cites to three treatment notes from plaintiff’s
urologist.19
This argument fails. The ALJ did not cite to these three treatment notes and nowhere
in the ALJ’s opinion did he explain how any of plaintiff’s diagnostic tests or physical
examinations undermined Dr. Bhalla’s opinion.

Moreover, the urologist was not

“evaluating” plaintiff’s cognitive functioning but rather was making some general
observations about plaintiff’s mental state.
Defendant next argues that the court committed clear error by concluding that an
award for benefits was the appropriate remedy. More specifically, defendant argues that the
court misapplied the “credit-as-true” analysis. The court concluded that if plaintiff’s
subjective pain and symptom testimony were credited as true, then based on the testimony
of the vocational expert, plaintiff would be disabled.20 In reaching this conclusion, the court
rejected defendant’s arguments that the record was not fully developed. The court also
concluded that if Dr. Bhalla’s opinion were credited as true, then based on the testimony of
the vocational expert, plaintiff would be disabled.21 The court then considered whether the
record as the whole created serious doubt that plaintiff was disabled and concluded that it

19

Admin. Rec. at 772, 785 & 803.

20

Order at 8-9, Docket No. 31.

21

Id. at 14.
-7-

did not.22 Defendant argues that this analysis was contrary to that set forth in Treichler v.
Commissioner of Social Security Administration, 775 F.3d 1090 (9th Cir. 2014) and BrownHunter v. Colvin, — F.3d —, 2015 WL 6684997 (9th Cir. 2015).
In Treichler, the court laid out a three-step analysis to be used to determine whether
a matter should be remanded for an award of benefits. First, the court “ask[s] whether the
‘ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant
testimony or medical opinion.’” Treichler, 775 F.3d at 1100-01 (quoting Garrison, 759 F.3d
at 1020). “Second, if the ALJ erred, [the court] determine[s] whether the record has been fully
developed, whether there are outstanding issues that must be resolved before a determination of disability can be made, and whether further administrative proceedings would be
useful[.]” Id. at 1101 (internal citations omitted). “Third, if [the court] conclude[s] that no
outstanding issues remain and further proceedings would not be useful, [the court] may
apply [the] prophylactic Varney rule, finding the relevant testimony credible as a matter of
law, and then determine whether the record, taken as a whole, leaves not the slightest
uncertainty as to the outcome of [the] proceeding.” Id. (internal citations omitted).
Similarly, in Brown-Hunter, the court set out the three-step analysis to be used to
determine whether a remand for an award of benefits would be appropriate. “First, [the
court] must conclude that ‘the ALJ has failed to provide legally sufficient reasons for rejecting

22

Id.
-8-

evidence, whether claimant testimony or medical opinion.’” Brown-Hunter, 2015 WL
6684997, at *7 (quoting Garrison, 759 F.3d at 1020). “Second, [the court] must conclude that
‘the record has been fully developed and further administrative proceedings would serve no
useful purpose.’” Id. (quoting Garrison, 759 F.3d at 1020). “Third, [the court] must conclude
that ‘if the improperly discredited evidence were credited as true, the ALJ would be required
to find the claimant disabled on remand.’” Id. (quoting Garrison, 759 F.3d at 1021). But,
“even if all three requirements are met, [the court] retain[s] ‘flexibility’ in determining the
appropriate remedy” and “may remand on an open record for further proceedings ‘when the
record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within
the meaning of the Social Security Act.’” Id. (quoting Garrison, 759 F.3d at 1021).
Defendant argues that the court misapplied the second step of this analysis.
Defendant contends that the court concluded that if plaintiff’s statements and Dr. Bhalla’s
opinion were credited as true, then plaintiff would be disabled and thus there were no
outstanding issues to be resolved. Defendant argues that this was clear error because the
court must “assess whether there are outstanding issues requiring resolution before
considering whether to hold the claimant’s testimony credible as a matter of law.” Treichler,
775 F.3d at 1105. In Treichler, the plaintiff “argue[d] that because the ALJ erred, [the court]
should credit his testimony as true. Once [the court] ha[d] done so, he argue[d], there would
be no outstanding issues to resolve and [the court] should remand for benefits.” Id. The
Ninth Circuit rejected this argument because “an ALJ’s failure to provide sufficiently specific
-9-

reasons for rejecting the testimony of a claimant or other witness does not, without more,
require the reviewing court to credit the claimant’s testimony as true.” Id. at 1106. At the
second step of the analysis, the court must “consider whether the record as a whole is free
from conflicts, ambiguities, or gaps, whether all factual issues have been resolved, and
whether the claimant’s entitlement to benefits is clear under the applicable legal rules.” Id.
at 1103-04. The record cannot be fully developed if it “‘raises crucial questions as to the
extent of a [claimant’s] impairment given the inconsistencies between his testimony and the
medical evidence in the record[.]’” Brown-Hunter, 2015 WL 6684997, at *7 (quoting Treichler,
775 F.3d at 1105).
This court found that further proceedings would not be appropriate here, in part,
because defendant should not be given another opportunity to assess plaintiff’s credibility
and because the ALJ could have obtained a consultative examination prior to SSR 12-2p being
published.23 Defendant argues that this was clear error because “[t]he touchstone for an
award of benefits is the existence of a disability, not the agency’s legal error.” Id. Defendant
insists that courts must analyze whether errors can be corrected on remand, not whether they
might have been avoided in the first place.
Defendant argues that the court’s reliance on Moisa, 367 F.3d 882, was misplaced.
There, the Ninth Circuit noted that when defendant loses an appeal, she “should not have

23

Order at 9-10, Docket No. 31.
-10-

another opportunity to show that [the plaintiff] is not credible any more than [the plaintiff],
had he lost, should have an opportunity for remand and further proceedings to establish his
credibility.” Id. at 887. Defendant argues that this statement was dicta and that it is contrary
to the detailed holdings in Treichler and Hunter-Brown. Defendant also argues that the
court’s reliance on the proposition that defendant should not be given another opportunity
to evaluate plaintiff’s credibility appears to “rest on the cynical view that the agency and its
adjudicators are more interested in denying benefits than in reaching good-faith, policycompliant disability determinations based on careful consideration of all the evidence in the
record.”24
Defendant argues that if the court properly applied the second prong of the credit-astrue analysis, it would conclude that a remand for further proceedings is the appropriate
remedy here. Defendant contends that the court “recognized” that plaintiff’s statements are
contradicted by other evidence in the record. This contention is based on what the court said
in regards to defendant’s argument that plaintiff’s self-reported limitations were contradicted
by other evidence. The court stated that
defendant points out that plaintiff reported that she could not sit,
stand or walk for any length of time and that her pain was
getting worse over time, but also reported that she cared for her
spouse and two children. As another example, defendant points
out that plaintiff testified that she spends a majority of her time
in the bathroom and has problems with incontinence, but the

24

Motion to Alter or Amend Judgment [etc.] at 13, Docket No. 34.
-11-

medical evidence shows that her bladder problem was surgically
treated in September 2011, and at a March 2012 follow-up, she
was doing well.[25]
Defendant insists that this show that there were inconsistencies that needed to be resolved
and thus the court committed clear error in concluding that there were no outstanding factual
issues to be resolved.
The court did not commit clear error in concluding that a remand for benefits was the
appropriate remedy in this case. The court may have stated its conclusion as to step three of
the credit-as-true analysis before it discussed step two of the analysis, but it did not fail to
consider whether the record was fully developed, whether there were outstanding issues to
be resolved, and whether further administrative proceedings were be useful. The court
considered and rejected defendant’s contention that a consultative examination would be
helpful.

The court considered and rejected defendant’s argument that there were

inconsistencies between plaintiff’s statements and the medical evidence that needed to be
resolved. And, the court considered whether additional testimony was needed from the
vocational expert. Had the court discussed these issues, which are exactly what the Ninth
Circuit has directed the court to consider at step two, prior to stating its step three conclusion,
the result of the analysis would have been the same. The appropriate remedy would still
have been an award for benefits because the ALJ erred as to plaintiff’s pain and symptom

25

Order at 10, Docket No. 31 (footnotes omitted).
-12-

statements and Dr. Bhalla’s opinion, the “‘record has been fully developed and further
administrative proceedings would serve no useful purpose,’” and if plaintiff’s statements and
Dr. Bhalla’s opinion were credited as true, the ALJ would be required to find plaintiff
disabled. Brown-Hunter, 2015 WL 6684997, at *7 (quoting Treichler, 775 F.3d at 1105).
Conclusion
Based on the foregoing, defendant’s Rule 59(e) motion26 is denied.
DATED at Anchorage, Alaska, this 20th day of November, 2015.
/s/ H. Russel Holland
United States District Judge

26

Docket No. 34.
-13-

APPENDIX
I. Examining sources
A. North Family Medicine/Dr. Barlow
Dr. Barlow was plaintiff’s PCP through September 2010.
On August 5, 2008, a CT of plaintiff’s pelvis showed a “[m]oderately prominent uterus
with probable posterior fibroid” and “nonspecific right parauterine calcification of
indeterminate significance, but possibly representing a calcified lymph node.”1
On February 2, 2009, x-rays of plaintiff’s chest showed “[n]o acute cardiopulmonary
process present.”2
On March 30, 2009, plaintiff complained of headaches in which the pain travels from
the base of her skull upwards and also with pain at temples and behind the eyes; and the
assessments included headaches/migraines and hypertension.3
On April 3, 2009, plaintiff came in for a blood pressure check; and her physical exam
was unremarkable.4
On April 25, 2009, plaintiff complained that she “wants to sleep all the time” and that
she has trouble getting out of bed; the assessment was fibromyalgia; and it was noted that she

1

Admin. Rec. at 426.

2

Admin. Rec. at 425.

3

Admin. Rec. at 385.

4

Admin. Rec. at 384.
-1-

needs to be seen by a rheumatologist.5
On May 5, 2009, plaintiff’s assessments were asthma, bronchitis, and hypertension.6
On May 12, 2009, plaintiff reported that her asthma was “improved” but that she had been
coughing all night; and the assessments included asthma and bronchitis.7 On May 13, 2009,
plaintiff complained of stomach pain and cramping, diarrhea, nausea and that she feels
bloated and gassy.8
On July 24, 2009, plaintiff complained of low abdominal pain and the assessments
were right pelvic pain and possible right hernia.9
On August 5, 2009, plaintiff reported that her back had “popped” and she could not
walk for four days; and the assessments included low back pain, overactive bladder, and
fibromyalgia.10 On August 12, 2009, plaintiff complained of new pain in her thoracic spine
and upper back; she had an abnormal gait, tenderness in her spine, and a negative straight
leg raising test; and the assessments included hypertension and back pain.11 On August 26,

5

Admin. Rec. at 393.

6

Admin. Rec. at 383.

7

Admin. Rec. at 382.

8

Admin. Rec. at 392.

9

Admin. Rec. at 391.

10

Admin. Rec. at 381.

11

Admin. Rec. at 380.
-2-

2009, plaintiff reported that her stomach pain was not better, that she has pain in her feet and
that vicodin helps her sleep, but she does not take it during the day because it makes her
drowsy.12
On September 1, 2009, plaintiff complained of a daily cough since taking Lisinoprol,
which was “bothering [her] lifestyle” and that she is fatigued a lot; other than tenderness to
palpation in her lower spine, her physical exam was unremarkable.13
On October 1, 2009, plaintiff reported that her cough is gone since she stopped taking
Lisinoprol and that her back pain was continuing; and the assessments were hypertension
and back pain.14
On November 9, 2009, plaintiff complained of chest tightness and low back pain; and
the assessments included hypertension, back pain, and asthma.15 On November 26, 2009,
plaintiff complained of muscle spasms in her back and that vicodin does not keep the pain
down; and the assessments included low back pain.16
On December 21, 2009, plaintiff reported that she did not “feel right” and the

12

Admin. Rec. at 390.

13

Admin. Rec. at 377.

14

Admin. Rec. at 376.

15

Admin. Rec. at 375.

16

Admin. Rec. at 389.
-3-

assessments included hypertension and back pain.17
On January 11, 2010, plaintiff complained of back pain and left foot pain; and the
assessments were hypertension, fibromyalgia, back pain and foot pain.18
On February 11, 2010, plaintiff came in for a hypertension meds check and the
assessments were hypertension and foot pain.19
On March 3, 2010, x-rays of plaintiff’s left foot showed “[n]o fracture or acute bone
pathology” and “moderate hypertrophy along the plantar surface of the calcaneus.”20
On March 17, 2010, the assessments were left foot pain, fibromyalgia, and second
degree burn on right arm; and Dr. Barlow noted that plaintiff’s fibromyalgia was “well
controlled right now.”21
On April 20, 2010, plaintiff complained of a headache, running nose, body aches, and
a cough; and the assessments included acute upper respiratory infection and renal
insufficiency.22
On June 1, 2010, plaintiff complained of low back pain, right ear pain, and face pain;

17

Admin. Rec. at 374.

18

Admin. Rec. at 373.

19

Admin. Rec. at 372.

20

Admin. Rec. at 409.

21

Admin. Rec. at 371.

22

Admin. Rec. at 449.
-4-

and the assessments were urinary tract infection, upper respiratory infection, and renal
insufficiency.23
On June 15, 2010, plaintiff reported that she needs more percocet than her
rheumatologist prescribes and that she was told that she would be referred to pain
management but that did not happen.24 The assessments were hypertension, fibromyalgia,
renal insufficiency, and resolved upper respiratory infection.25
On September 14, 2010, the assessments were hypertension, renal insufficiency, and
obesity.26
B. Dr. Chisholm
On September 10, 2008, plaintiff complained of pelvic pain and Dr. Chisholm began
“work-up, check lab and cultures, pelvic ultrasound, begin trial of ABs, cycle with OC, reeval
in 6-12 weeks.”27 On September 16, 2008, the ultrasound showed “[m]ildly prominent
endometrial stripe” and “a 2.7 cm cyst present in the left ovary.”28
On October 8, 2008, Dr. Chisholm “discussed risk/benefits and also possibility pain is

23

Admin. Rec. at 531.

24

Admin. Rec. at 481.

25

Admin. Rec. at 481.

26

Admin. Rec. at 529.

27

Admin. Rec. at 338.

28

Admin. Rec. at 339.
-5-

probably not related to the fibroid and surgery may not correct this, pt. wants to proceed due
to bleeding and chance of cure. will return for pre-op visit.”29
On January 7, 2009, plaintiff came in for her pre-op appointment but advised Dr.
Chisholm that she needed to postpone her surgery until she moved.30
On February 18, 2009, plaintiff had a hysterectomy.31
On March 25, 2009, plaintiff complained of abdominal pains and loose stools and she
requested pain medication.32 Dr. Chisholm’s exam revealed that plaintiff had a tender
abdomen and he thought she may have irritable bowel syndrome.33
C. Valley Arthritis Care/PAC Nelson/Dr. Bhalla
Plaintiff was treated for her fibromyalgia, arthritis, and degenerative disc disease by
PAC Nelson and Dr. Bhalla from August 2009 through May 10, 2012. Plaintiff generally saw
PAC Nelson, who was supervised by Dr. Bhalla.
On August 14, 2009, plaintiff’s exam showed positive trigger points at the occipital
muscle, the supraspinatus muscle, the trapezius muscle, the gluteal muscles, the greater
trochanter, the anterior lower cervical region, the second costochondral junction, the lateral

29

Admin. Rec. at 336.

30

Admin. Rec. at 335.

31

Admin. Rec. at 332.

32

Admin. Rec. at 325.

33

Admin. Rec. at 325-326.
-6-

epicondyle, and the medial knee; and muscle spasms were observed.34 The assessments were
fibromyalgia, diabetes mellitus, and lumbar radiculopathy.35
On September 18, 2009, plaintiff’s exam was the same as her August 15, 2009 exam;
and the assessments were fibromyalgia, diabetes mellitus, and lumbar radiculopathy.36
A September 24, 2009, MRI of plaintiff’s lumbar spine showed “[s]mall posterior
central disk protrusion at L5-S1" but was otherwise unremarkable.37
On September 30, 2009, plaintiff’s “[l]umbosacral spine exhibited tenderness on
palpation. Lumbosacral spine exhibited muscle spasms. A straight-leg raising test of the
right leg was positive.”38 Plaintiff had positive trigger points at the occipital muscle, the
supraspinatus muscle, the trapezius muscle, the gluteal muscles, the greater trochanter, the
anterior lower cervical region, the second costochondral junction, the lateral epicondyle, and
the medial knee.39 The assessments were fibromyalgia, diabetes mellitus, and lumbar
radiculopathy.40

34

Admin. Rec. at 356.

35

Admin. Rec. at 356-357.

36

Admin. Rec. at 359.

37

Admin. Rec. at 444.

38

Admin. Rec. at 361.

39

Admin. Rec. at 361.

40

Admin. Rec. at 361.
-7-

On November 30, 2009, plaintiff’s exam was the same as it had been on September 30,
2009; the assessments were fibromyalgia, diabetes mellitus, and lumbar radiculopathy; and
plaintiff was going to be scheduled for pain management.41
On January 25, 2010, plaintiff complained of fatigue, headache, dryness of the eyes,
soft tissue stiffness, back pain and stiffness, numbness, memory lapses or loss, and sleep
disturbances.42

Plaintiff’s “[l]umbosacral spine exhibited tenderness on palpation.

Lumbosacral spine exhibited muscle spasms. A straight-leg raising test of the right leg was
positive.”43 Plaintiff had positive trigger points at the occipital muscle, the supraspinatus
muscle, the trapezius muscle, the gluteal muscles, the greater trochanter, the anterior lower
cervical region, the second costochondral junction, the lateral epicondyle, and the medial
knee.44 The assessments were fibromyalgia, diabetes mellitus, and lumbar radiculopathy.45
Plaintiff’s prescriptions included temazepam, restoril, skelexin, percocet, and naprelan.46
On April 23, 2010, plaintiff’s physical exam of her ““[c]ervical spine showed
tenderness on palpation.... Lumbosacral spine exhibited tenderness on palpation.
41

Admin. Rec. at 362-363.

42

Admin. Rec. at 364. Plaintiff raised similar complaints at most of her appointments
with Nelson and Dr. Bhalla.
43

Admin. Rec. at 365.

44

Admin. Rec. at 365.

45

Admin. Rec. at 365.

46

Admin. Rec. at 365.
-8-

Lumbosacral spine exhibited muscle spasms. A straight-leg raising test of the right leg was
positive.”47 Plaintiff has positive trigger points at the occipital muscle, the supraspinatus
muscle, the trapezius muscle, the gluteal muscles, the greater trochanter, the anterior lower
cervical region, the second costochondral junction, the lateral epicondyle, and the medial
knee.48 The assessments were fibromyalgia, diabetes mellitus, and lumbar radiculopathy.49
On May 3, 2010, x-rays of plaintiff’s hands showed “[d]egenerative changes at the 5th
DIP joint bilaterally. No other specific arthropathic change on either side and no acute
osseous findings.”50 May 3, 2010 x-rays of plaintiff’s lumbar spine showed an “[e]ssentially
normal lumbar spine.”51 May 3, 2010 x-rays of plaintiff’s cervical spine showed “[m]inor
spurring at the C5-6 level but no other evidence of disk or facet joint degeneration. No spinal
stenosis.”52
On June 23, 2010, plaintiff’s “[c]ervical spine showed tenderness on palpation....
Lumbosacral spine exhibited tenderness on palpation. Lumbosacral spine exhibited muscle

47

Admin. Rec. at 628.

48

Admin. Rec. at 629.

49

Admin. Rec. at 629.

50

Admin. Rec. at 632.

51

Admin. Rec. at 633.

52

Admin. Rec. at 634.
-9-

spasms. A straight-leg raising test of the right leg was positive.”53 Plaintiff had positive
trigger points at the occipital muscle, the supraspinatus muscle, the trapezius muscle, the
gluteal muscles, the greater trochanter, the anterior lower cervical region, the second
costochondral junction, the lateral epicondyle, and the medial knee.54 The assessments were
fibromyalgia, diabetes mellitus, and lumbar radiculopathy; and the plan was to obtain an
MRI of plaintiff’s lumbar spine and continue current medication, which included Percocet,
temazepam restoril, skelexin, lyrica, and naprelan.55
On September 1, 2010, plaintiff’s “[c]ervical spine showed tenderness on palpation....
Lumbosacral spine exhibited tenderness on palpation. Lumbosacral spine exhibited muscle
spasms. A straight-leg raising test on the right leg was positive.”56 Plaintiff had positive
trigger points at the occipital muscle, the supraspinatus muscle, the trapezius muscle, the
gluteal muscles, the greater trochanter, the anterior lower cervical region, the second
costochondral junction, the lateral epicondyle, and the medial knee.57 The assessments were
fibromyalgia, diabetes mellitus, and lumbar radiculopathy.58

53

Admin. Rec. at 625.

54

Admin. Rec. at 625.

55

Admin. Rec. at 625-626.

56

Admin. Rec. at 569.

57

Admin. Rec. at 569-570.

58

Admin. Rec. at 570.
-10-

October 4, 2010 x-rays of plaintiff’s knees showed “[p]robable soft tissue calcifications
on the left. Otherwise, unremarkable knees.”59
On November 5, 2010, plaintiff’s “[c]ervical spine showed tenderness on palpation....
Lumbosacral spine exhibited tenderness on palpation. Lumbosacral spine exhibited muscle
spasms. A straight-leg raising test on the right leg was positive.”60 Plaintiff had positive
trigger points at the occipital muscle, the supraspinatus muscle, the trapezius muscle, the
gluteal muscles, the greater trochanter, the anterior lower cervical region, the second
costochondral junction, the lateral epicondyle, and the medial knee.61 The assessments were
fibromyalgia, diabetes mellitus, and lumbar radiculopathy.62
The November 16, 2010 MRI of plaintiff’s left knee was “[e]ssentially unremarkable”
and showed “[n]o discrete meniscal tear or evidence for ligament injury.”63
On December 6, 2010, plaintiff’s “[c]ervical spine showed tenderness on palpation....
Lumbosacral spine exhibited tenderness on palpation. Lumbosacral spine exhibited muscle
spasms. A straight-leg raising test on the right leg was positive.”64 Plaintiff had positive

59

Admin. Rec. at 572.

60

Admin. Rec. at 565.

61

Admin. Rec. at 565-566.

62

Admin. Rec. at 566.

63

Admin. Rec. at 631.

64

Admin. Rec. at 592.
-11-

trigger points at the occipital muscle, the supraspinatus muscle, the trapezius muscle, the
gluteal muscles, the greater trochanter, the anterior lower cervical region, the second
costochondral junction, the lateral epicondyle, and the medial knee.65 The assessments were
fibromyalgia, renal insufficiency, diabetes mellitus, and lumbar radiculopathy.66
On March 21, 2011, Dr. Bhalla noted that “[e]valuation of the Left median motor and
Right ulnar sensory nerves showed reduced amplitude.... The Right median motor nerve
showed prolonged distal onset latency (4.4 ms) and reduced amplitude.... The Left median
sensory and the Right median sensory nerves showed prolonged distal peak latency ... and
decreased conduction velocity.... All remaining nerves ... were within normal limits. All F
Waves latencies were within normal limits.”67 Dr. Bhalla’s impression was bilateral carpal
tunnel.68
On June 7, 2011, plaintiff’s ““[c]ervical spine showed tenderness on palpation....
Lumbosacral spine exhibited tenderness on palpation. Lumbosacral spine exhibited muscle
spasms. A straight-leg raising test of the right leg was positive.”69 Plaintiff had positive
trigger points at the occipital muscle, the supraspinatus muscle, the trapezius muscle, the

65

Admin. Rec. at 592-593.

66

Admin. Rec. at 593.

67

Admin. Rec. at 639.

68

Admin. Rec. at 639.

69

Admin. Rec. at 622.
-12-

gluteal muscles, the greater trochanter, the anterior lower cervical region, the second
costochondral junction, the lateral epicondyle, and the medial knee.70 The assessments were
fibromyalgia, renal insufficiency, diabetes mellitus, carpal tunnel syndrome, and lumbar
radiculopathy.71
June 22, 2011, x-rays of plaintiff’s lumbar spine showed “some minimal degenerative
lipping about the anterolateral aspect of the superior and inferior endplates of L4 and the
inferior endplate of L5. There is some subtle disc space narrowing at the L5-S1 interspace
with some arthrosis of the arthrodial facets of the lower lumbar spine. Remaining osseous
architecture is preserved.”72
On August 1, 2011 plaintiff’s “[c]ervical spine showed tenderness on palpation....
Lumbosacral spine exhibited tenderness on palpation. Lumbosacral spine exhibited muscle
spasms. A straight-leg raising test of the right leg was positive.”73 Plaintiff had positive
trigger points at the occipital muscle, the supraspinatus muscle, the trapezius muscle, the
gluteal muscles, the greater trochanter, the anterior lower cervical region, the second

70

Admin. Rec. at 622-623.

71

Admin. Rec. at 623.

72

Admin. Rec. at 630.

73

Admin. Rec. at 636.
-13-

costochondral junction, the lateral epicondyle, and the medial knee.74 The assessments were
fibromyalgia, renal insufficiency, diabetes mellitus, lumbar disc degeneration, carpal tunnel
syndrome, and lumbar radiculopathy.75
On October 3, 2011, plaintiff’s physical exam was the same as it was on August 1, 2011;
and the assessments were fibromyalgia, renal insufficiency, diabetes mellitus, lumbar disc
degeneration, carpal tunnel syndrome, and lumbar radiculopathy.76
On January 3, 2012, plaintiff’s physical exam was the same as it was on October 3,
2011; and the assessments were fibromyalgia, renal insufficiency, diabetes mellitus, lumbar
disc degeneration, carpal tunnel syndrome, and lumbar radiculopathy.77 The plan was to
continue plaintiff’s current medications which were percocet and lyrica.78
On May 14, 2010, plaintiff’s “[c]ervical spine showed tenderness on palpation....
Lumbosacral spine exhibited tenderness on palpation. Lumbosacral spine exhibited muscle
spasms. A straight-leg raising test on the right leg was positive.”79 Plaintiff had positive
trigger points at the occipital muscle, the supraspinatus muscle, the trapezius muscle, the

74

Admin. Rec. at 636-637.

75

Admin. Rec. at 637.

76

Admin. Rec. at 618-619.

77

Admin. Rec. at 614-615.

78

Admin. Rec. at 615.

79

Admin. Rec. at 609-610.
-14-

gluteal muscles, the greater trochanter, the anterior lower cervical region, the second
costochondral junction, the lateral epicondyle, and the medial knee.80 The assessments were
fibromyalgia, hypertension, renal insufficiency, diabetes mellitus, lumbar disc degeneration,
carpal tunnel syndrome, and lumbar radiculopathy.81
On June 4, 2012, Dr. Bhalla completed a Fibromyalgia Residual Functional Capacity
(RFC) Questionnaire, which is a check-box form. Dr. Bhalla noted that in addition to
fibromyalgia, plaintiff had degenerative disc disease.82 He noted that plaintiff’s symptoms
included multiple tender points, nonrestorative sleep, frequent severe headaches, severe
fatigue, abdominal pain, diarrhea and/or constipation, cognitive impairment, and low back
pain.83 He opined that plaintiff had moderately severe pain and fatigue which would
frequently interfere with her attention and concentration and that she would frequently
“experience deficiencies of concentration, persistence or pace resulting in failure to complete
tasks in a timely manner....”84 And, he opined that plaintiff would be unable to sustain work
on a regular and continuing basis.85

80

Admin. Rec. at 610.

81

Admin. Rec. at 610.

82

Admin. Rec. at 314.

83

Admin. Rec. at 314.

84

Admin. Rec. at 314-316.

85

Admin. Rec. at 316.
-15-

D. Valley Foot Care
On April 7, 2010, Dr. Sekosky noted that plaintiff was complaining of “left foot pain
plantar waypoint specifically into the intermetatarsal space number two on the left foot”; his
examination showed “tenderness with metatarsal palpation” and his impression was
“[n]euritis/possible metatarsal fracture” and he ordered x-rays and an ultrasound.86 The
April 13, 2010 ultrasound of plaintiff’s left foot showed “no evidence for a Morton’s
neuroma” and that “there is a nonspecific small ovoid lesion within the plantar soft tissues
at the distal second and third metatarsal levels, appears to correspond to patient’s symptoms.
Consider a small inflammatory nodule or other mass. A small giant cell tumor of the tendon
sheath could be a consideration as it is in the vicinity of the second and third toe flexor
tendons.”87 The April 13, 2010 x-rays showed “[n]o evidence for fracture.”88
A May 3, 2010 MRI of plaintiff’s foot showed that “[t]here is a discrete lobular 1 cm
enhancing lesion in the plantar soft tissues at the second and third metatarsal head level. The
findings suggest a small inflammatory process. A giant cell tumor of the tendon sheath is a
consideration. The findings would be atypical, although somewhat superficial location for

86

Admin. Rec. at 439.

87

Admin. Rec. at 441.

88

Admin. Rec. at 443.
-16-

a Morton’s neuroma, is not excluded. There is no evidence for a ganglion cyst.”89
On May 12, 2010, plaintiff continued “to relay sensation of feeling a bump in the
bottom of her foot and points quite proximal with respect to where a neuroma would
actually be and this seems to be less likely.”90 Dr. Sekosky’s impression/plan was “[p]ossible
ganglion/neuroma with additional differentiation. Differential diagnosis of giant cell tumor
tendon sheath. Refer to Dr. Matt Seidel for management and direction.”91
E. Dr. Seidel/Dr. Brimacombe
On June 17, 2010, plaintiff “present[ed] for consultation regarding a mass on the
plantar aspect of her left foot. This [has] become quite painful and has caused her to
ambulate on the side of her foot causing callus and pain in that area also. MRI scan shows
a inflammatory-appearing mass on the plantar aspect of the foot beneath the second and
third metatarsal heads. Unfortunately I do not believe it is accessible through a dorsal
approach and therefore a plantar incision will need to be made. We had a long discussion
regarding the possibilities of painful scarring on the plantar aspect of the foot. The patient
wished to proceed with an excision and she will be scheduled for surgery as soon as

89

Admin. Rec. at 451.

90

Admin. Rec. at 457.

91

Admin. Rec. at 457.
-17-

possible.”92
Plaintiff had surgery on July 7, 2010.93
On July 20, 2010, Dr. Seidel noted that plaintiff’s “pathology report showed that this
is a benign lipoma. Intraoperatively this was certainly causing a mass effect on the plantar
soft tissues. The patient’s sutures were removed today. She will remain in the postop shoe
for another 2 weeks and we will see her back at that time in anticipation of release to full
activities.”94
On August 19, 2010, Dr. Seidel noted that plaintiff’s “incision is now completely
healed. She is now released to activities and shoe wear as tolerated.”95
On August 31, 2010, Dr. Seidel noted that plaintiff’s “incision continues to heal well.
There are still a few small spots which have not completely healed. There is no evidence of
infection. Like her to continue in the postoperative shoe and see me back in 2 weeks. I have
emphasized the importance of elevating to reduce the swelling so that the incision w[ill] heal
completely.”96
On December 9, 2010, plaintiff complained of “recurrent severe pain in the” plantar

92

Admin. Rec. at 456.

93

Admin. Rec. at 459.

94

Admin. Rec. at 749.

95

Admin. Rec. at 744.

96

Admin. Rec. at 534.
-18-

aspect of her foot “as well as pain in the third and fourth toes. Plain films today do not reveal
any bony abnormality. We will send her for a new MRI scan to rule out recurrence of the
mass.”97
On January 3, 2011, plaintiff complained to Dr. Brimacombe of “continued left forefoot
pain around her first second and third toes on both the plantar and dorsal surface. She had
a resection of a benign tumor near her third webspace. The incision was through the bottom
of her foot. The wound is well healed at this point in time. There is tenderness to palpation
along the incision. There is also tenderness to palpation under the first second and third ray.
She has pain with dorsiflexion of her first 3 metatarsophalangeal joints. She is very stiff with
range of motion of these joints as well. She has good sensation in her toes. Her pain does not
sound nerve related. I suspect her pain is due to scarring from her surgery. I did not get the
sense of a specific nerve injury as 3 toes are involved. I would like her to go to therapy and
be aggressive with trying to increase her motion and decrease her hypersensitivity on her
foot. Depending on the results of therapy, I may consider a diagnostic injection of her plantar
foot. Her MRI did not show any recurrence of tumor. There is no gross neuroma noted.”98
On April 20, 2011, plaintiff reported that she has sprained her left ankle on April 15,
2011. “She has swelling and tenderness to palpation. There is a stiffness and some weakness

97

Admin. Rec. at 742.

98

Admin. Rec. at 739.
-19-

with strength testing. She has no medial tenderness. Patient also reports that her plantar foot
pain has improved significantly. Her great toe range of motion has improved. She does have
some cramping through her foot in the evening time. Overall patient has strong pulses. Her
feet are warm. She has good sensation with no numbness or tingling. She has good motion
and strength. X-rays show no fracture of her ankle. We will treat her for an ankle sprain.
We talked about rest, elevation, compression, ice, and bracing. She’ll try to buy a brace at the
store. We talked about physical therapy, but she has used up most of her visits. She’ll see
me back in a couple of weeks if she has any lingering trouble. As for the cramping in her
foot, I think this is going to be transient and get better with time. I do not detect any
neurological or vascular abnormalities. There is no motor or bony deformity either.”99
F. Dr. Bucholz/The Pain Center of Arizona
On July 9, 2010 plaintiff began seeing Dr. Bucholz for pain management. Dr. Bucholz’s
exam showed that plaintiff was “well developed, well nourished; easily responsive to visual,
verbal and tactile stimulation, oriented x 4; no apparent deformities; well groomed;
cooperative; appears healthy. Appears same as stated age. Ability to communicate: Normal.
Patient arrived at The Pain Center of Arizona today using crutches.... Face and head
symmetry and contour normal. No contusions noted. No lacerations noted. No masses
noted. No scars noted. No skin lesions noted.... Neck: symmetrical, trachea is midline; no

99

Admin. Rec. at 737.
-20-

neck masses; no skin lesions; no lacerations. Hyoid position normal. Respiratory: Chest
Wall expands normally and no deformities noted. Respiratory Effort normal. Gastrointestinal: Flank normal with no masses or tenderness.... Musculoskeletal: Station normal. Digits:
symmetrical; without masses. Range of motion: flexion is normal (at least 90 degrees);
extension is normal (at least to midline). Cervical spine: Normal to inspection.... Skin: Scalp
hair normal.

Eyelashes normal.

Facial hair: normal texture; normal quantity and

distribution. Hair on extremities: normal on the upper extremities, normal on the lower
extremities.”100 Dr. Bucholz wrote that plaintiff was “a new patient with a chief complaint
of chronic low back, left knee, and left foot pain. She also has a secondary chief complaint
of essentially polyarthralgia. She recently underwent left foot surgery consisting of a
neuroma excision. She is seen in a walking immobilizer and with crutches for that. She has
MRI evidence of an L5-S1 disk protrusion. She admits to left buttock and leg pain with
numbness around the knee. She does take oxycodone typically tid with moderate relief. She
expects to have surgical restrictions regarding her left foot for the next ‘three to six weeks.’
Because of her innate immobility, a full physical examination is difficult to perform.”101 Dr.
Bucholz’s assessments were lumbar radicular pain, left foot pain, and questionable left knee

100

Admin. Rec. at 466-467.

101

Admin. Rec. at 468.
-21-

pain.102
On September 7, 2010, plaintiff reported no change in her pain since her last visit, that
her pain level was a 7, and that her pain “interferes with most, but not all, daily activities.”103
Dr. Bucholz “perform[ed] the patient’s first left L5 transforminal epidural steroid injection”
and refilled plaintiff’s pain meds.104
On September 21, 2010, plaintiff rated her pain as an 8, and Dr. Bucholz did a second
left L5 transforminal epidural steroid injection.105
On October 12, 2010, plaintiff rated her pain as a 9; and Dr. Bucholz did a third left L5
transforminal epidural steroid injection and ordered her “a 4-wheeled walker with brakes
and a seat” due to “[h]er difficulty with prolonged sitting and walking....”106 Dr. Bucholz’s
recommendations were “for further conservative palliative care and specifically further
maneuver toward palliation of the described pain symptomatology in the form of a course
of physical therapy.

Discussion has centered around a regimen that will begin

incorporat[ing] some pain relieving manual therapies initially and progress to a course of

102

Admin. Rec. at 468.

103

Admin. Rec. at 574.

104

Admin. Rec. at 577.

105

Admin. Rec. at 579 & 582.

106

Admin. Rec. at 583 & 586.
-22-

stretching, strengthening, and conditioning as appropriate and as tolerated.”107
On November 10, 2010, plaintiff “return[ed] ... for ongoing evaluation and management of her chronic pain. The patient states her current medication regime is modestly
effective in controlling her pain. She denies any side effects secondary to this.”108 “Based on
the clinical presentation, [Dr. Bucholz] believe[d] it to be both reasonable and medically
necessary to continue with the prescribed pain management plan.”109

Dr. Bucholz’s

diagnoses were lumbosacral spondylosis with facet syndrome and lumbar radiculopathy.110
On December 7, 2010, plaintiff reported that “her current medication regimen is
modestly effective in controlling her pain. However, she does feel that she does, at times,
need to take an extra hydrocodone and states that the cold weather has exacerbated her pain.
She does continue with physical therapy as previously ordered and states that she is
compliant with her home exercise program. She further states that her lumbar injections in
the past did not provide her with any relief for any amount of time. She does state that she
does continue to have low back pain that does radiate down the lateral thighs. She does have
some associated numbness at times in the anterior portion of both thighs. She does continue

107

Admin. Rec. at 585.

108

Admin. Rec. at 589.

109

Admin. Rec. at 589.

110

Admin. Rec. at 589.
-23-

to walk with a front-wheeled walker.”111
On January 10, 2011, plaintiff reported that “[s]he has recently begun physical therapy
and is hopeful about the possibilities that it holds for her. She is tolerating her medications
well. She states that with her increase in exercise she has felt the need to take additional
medication. She denies side effects.”112
On February 7, 2011, plaintiff complained “of lumbosacral pain as well as bilateral
upper quadrant abdominal pain. The patient admits that she is having surgery tomorrow for
a hernia repair.... She questions whether or not we will be managing her postoperative pain.
I stated that yes, in fact, we will. She states that in the past Percocet has worked well for
postoperative pain and that she does not feel her current hydrocodone dose would
adequately control her postoperative pain. The patient was participating regularly in
physical therapy. She has 3 visits left, but her surgeon told her to discontinue physical
therapy for 1 week prior to her surgery. She is not to resume physical therapy until cleared
by her surgeon. In addition, the patient admits to chronic constipation for which she uses
over-the-counter stool softeners and laxatives. In addition, the patient has again been told
to stay off her ibuprofen for 6 days prior to her surgery. On physical exam, the patient does
have tenderness to the bilateral upper quadrants as well as bilateral lower quadrants of the

111

Admin. Rec. at 734.

112

Admin. Rec. at 731.
-24-

abdomen. Lumbar range of motion is decreased with flexion primarily due to abdominal
pain. There is no tenderness to palpation of the lumbar paraspinal or sacroiliac joints.
Straight leg raise test is negative bilaterally.”113 Dr. Bucholz’s assessments were abdominal
pain, myofascial pain, lumbar radiculopathy, lumbago, and muscle spasms.114
On March 14, 2011, plaintiff reported that “[s]he continues to have significant back and
leg pain bilaterally to the calf. She underwent abdominal hernia surgery approximately 3
weeks ago and continues to recover from that. She will be following up with her surgeon in
the near future. Previously, she was in physical therapy with only mild improvement.”115
Dr. Bucholz’s assessment was lumbar radicular pain and they discussed epidural steroid
injections.116
On April 11, 2011, plaintiff “continue[d] to have back and left lower extremity
predominant pain. She feels that her abdominal pain has ‘gotten a lot better’ from the
previous hernia surgery, and [she] would like to proceed with epidural injections. She
continues to have pain and tingling in an L5 distribution, with concordant straight leg raise
maneuvers. She also complains of newer onset left-sided neck pain, with radiation to the
shoulder and decreased range of motion. She states that she has cervical spine x-rays

113

Admin. Rec. at 727.

114

Admin. Rec. at 727.

115

Admin. Rec. at 724.

116

Admin. Rec. at 724.
-25-

scheduled, but these have yet to be done.”117 Dr. Bucholz refilled plaintiff’s ibuprofen and
Norco prescriptions and started her on Flexeril.118
On May 10, 2011, plaintiff reported that she “continues to have significant lumbar
radicular pain complaints. We are awaiting authorization for the previously-discussed
epidural injections. She is tolerating her medications well and denies side effects. She does
state that she will be having bladder surgery likely within the next month.”119
On July 13, 2011, plaintiff reported that “she had her bladder surgery done last month,
and is no longer having problems with urinary incontinence. We have received insurance
authorization for her epidural steroid injections.... She continues to complain of pain in her
lower back on the left side in an L5-S1 distribution with radicular symptoms. She states that
she is completely out of her hydrocodone for the last week due to increased pain from her
surgery.”120
On August 5, 2011, Dr. Bucholz did plaintiff’s first lumbar L5-S1 epidural injections.121
On September 9, 2011, Dr. Bucholz did plaintiff’s second lumbar L5-S1 epidural steroid

117

Admin. Rec. at 721.

118

Admin. Rec. at 721.

119

Admin. Rec. at 718.

120

Admin. Rec. at 715.

121

Admin. Rec. at 712.
-26-

injection.122
On October 7, 2011, plaintiff reported that “[h]er back and lumbar pain have improved
approximately 50%. However, she is experiencing some abdominal pain, as she recovers
from her recent surgery.”123 Dr. Bucholz did a third lumbar epidural steroid injection.124
On November 4, 2011, plaintiff complained “of increased right leg pain. At her last
visit, the patient had an L5-S1 epidural steroid injection. This site is not red, swollen, and no
possible indications of an infection were noted. She noted some relief of her back pain but
has had an increased right leg pain. She is able to weight-bear. She ambulates without
difficulty. She is not noting any increase in numbness. Her patellar reflexes are equal. She
is complaining of increased difficulty sleeping because this pain is exacerbated at night. She
does take Lyrica at h.s. but is unsure of the exact dosage. This is provided to her by another
physician. She was asked to bring us a copy of her current medication list, at the next visit.
We’ll also institute trazodone for added neuropathic pain relief.”125
On December 8, 2011, plaintiff complained “of right leg throbbing. This was relieved
for 2 days by the Trazodone, but is now worse. The Trazodone will be discontinued and
elavil will be started. I have explained to the patient that amitriptyline or Elavil is commonly

122

Admin. Rec. at 708.

123

Admin. Rec. at 703-704.

124

Admin. Rec. at 704.

125

Admin. Rec. at 700.
-27-

used for chronic pain, including nerve pain. [S]he does have significant side effects which
include drowsiness and constipation. It also make take weeks before the total pain relief
effect is achieved. It is common to feel very tired when starting on this medication, which is
[why it] is given at bedtime. She was told to call us if she has any problems with the
medication. The patient is content on her current medications except for the trazodone. She
denies any side effects with her medications.”126
On January 9, 2012, plaintiff reported that “[s]he is having significant bilateral back
and buttock pain. This is her primary pain generator. She is having radiation down the
proximal legs to the knees. She has now been feeling this for 6 weeks. Rest and oral
antiinflammatories have not been successful. She has a difficult time sitting. She continues
to have left knee pain as well. On physical exam, she demonstrates positive tenderness to
palpation over the bilateral sacroiliac joints. Bilateral Patrick maneuvers and flexion,
abduction, and external rotation (FABER) maneuvers significantly increase her symptoms.
Straight leg raise maneuvers are unremarkable. There are no lower extremity sensory or
motor deficits. She has tenderness over the anterior left knee joint line. She has increased
pain and moderately decreased range of motion with left distal leg flexion. She inquires
about the possibility of left knee treatment as well.”127 Dr. Bucholz’s assessments were

126

Admin. Rec. at 696.

127

Admin. Rec. at 692.
-28-

sacroilitis, left knee pain, and myofascial pain.128
On January 24, 2012, plaintiff “denie[d] any changes in the location of her pain or in
its general description since her last evaluation” and Dr. Bucholz did a sacroiliac joint
injection.129
On February 7, 2012, plaintiff reported that her “left-sided back pain is significantly
better. Her right-sided back and buttock pain are moderately better. She is also complaining
of bilateral lower extremity radiating pain. She continues to have tenderness to palpation
over both sacroiliac joints, right greater than left. She also demonstrates positive lumbar facet
loading maneuvers bilaterally.”130 Dr. Bucholz did a bilateral sacroiliac joint injection.131
On March 6, 2012, plaintiff reported “two to three weeks of excellent pain relief from
the last sacroilliac joint injection, but her symptoms have begun to return. She once again is
having axial back and upper buttocks symptoms. She has palpatory tenderness over the
sacroilliac joints, with increased pain with lumbar hyperextension maneuvers.”132 Dr.
Bucholz performed “a diagnostic medial branch block, using local anesthetic only, of the
bilateral L4 medical branches, the L5 dorsal rami, and the S1 and S2 lateral branches” and

128

Admin. Rec. at 692-693.

129

Admin. Rec. at 689.

130

Admin. Rec. at 685-686.

131

Admin. Rec. at 686.

132

Admin. Rec. at 682.
-29-

“[i]n the recovery area after [the] procedure, the patient admitted to 80% relief of her
concordant symptoms.”133
On March 30, 2012, Dr. Bucholz did radiofrequency ablation of the left L4 medial
branch, L5 dorsal rami, and S1-2 lateral branches.134 Plaintiff reported “100% pain relief for
the expected duration of the local anesthetic from the last diagnostic medial branch block.”135
On April 17, 2012, Dr. Bucholz did radiofrequency ablation on the right side at L4-L5,
S1-S2.136
On May 1, 2012, FNP Seago noted that at plaintiff’s “last visit she had a right L4
through S2 radiofrequency ablation. She has noted an increase in what she calls gluteal pain.
Her pain is centered at the sacroiliac joints bilaterally, right greater than left. We discussed
the fact that it may be some local irritation from the radiofrequency ablation, although her
pain is bilateral, so this is doubtful. Alternatively, she may just have some sacroiliac joint
irritation, sacroilitis, as she has had this in the past. We discussed sacroiliac joint injections.
The patient is content with current medications, and denies any adverse effects from them.”137

133

Admin. Rec. at 682.

134

Admin. Rec. at 678.

135

Admin. Rec. at 678.

136

Admin. Rec. at 674.

137

Admin. Rec. at 672.
-30-

G. Arizona Kidney Disease and Hypertension Center
On August 11, 2010, Dr. Rodelas’ physical exam showed a “[n]ormocephalic, alert
female not in any acute distress. HEENT: No conjuctive pallor. No lesions over mouth, nose
and ears. NECK: No neck vein distention, carotid bruit or lymphadenopathy. The thyroid
is not enlarged. LUNGS: Clear to ausculatation bilaterally. HEART: Good heart sounds.
No S3 gallop, pericardial rub, or murmur. ABDOMEN: Soft. No hepatosplenomegaly and
no CVA tenderness. No other masses felt. Bowel sounds are normoactive. GU: Rectal
examination was not done. EXTREMITIES: No evidence of peripheral edema. No joint
swelling. No decrease in pulses over the dorsalis pedis. SKIN: No skin rash.”138 Dr. Rodelas
believed that plaintiff had “chronic kidney disease possibly on the basis of chronic use of
interstitial nephritis. However, I do not believe that her kidney function is this severe and
we will see if this is really a true GFR that she has and I ordered a 24-hour creatinine
clearance on her after she comes in for the next visit. I ordered a spot urine for eosinophil,
creatinine, sodium and microalbumin on her. I told her to stop the Ibuprofen and instead ...
take some Tramadol 50-100 mg three times daily along with Hydrocodone/APAP. I ordered
an ultrasound of the kidney just to make sure she does not have any pathology aside from
what I suspect this last time.”139

138

Admin. Rec. at 517.

139

Admin. Rec. at 517-518.
-31-

On October 13, 2010, plaintiff came in “for follow-up of her unexplained kidney failure
which I thought might be due to non-steroidal anti-inflammatory drug induced acute
interstitial nephritis. She had creatinine of 1.22 a month ago and had a serum creatinine of
1.16 during her initial visit with me. Her GFR was not too bad at 52 and I saw her again two
months after her initial visit hoping that the creatinine would show some improvement or
at least be stable, but instead of that, her creatinine went up further than the previous lab
work of 1.16. It went up to 1.22. Her GFR estimate is about 49 cc per minute, but when she
collected the urine for creatinine clearance, her creatinine clearance came back at 49 cc per
minute, which is pretty close to the estimated GFR, she has. She had a negative work-up for
secondary glomerulonephritis. She has no evidence of vasculitis. Her ANA is negative, her
sedimentation rate is still low at 7. The rest of chemistries shows no proteinuria also in her
urine which she measured for 24 hours and the microalbumin normalized was only 40
mg/gram of creatinine. I did not see any issue in the urine. I am wondering whether the
diagnosis of interstitial nephritis is not present on her and rather we might be dealing with
other causes. What I am wondering is whether she has other causes such as ischemic
nephropathy. She has no history of trauma to the kidney, but her left kidney measured 9.4
cm while the right kidney measures 10.6 cm. She is hypertensive but controlled on
amlodipine only. She may have an undiagnosed renovascular hypertension which is mild
at this point so I am looking for renal artery stenosis either fibromuscular or something to
that matter. The fact that the renal function is worsening rather than improving, points to the
-32-

fact that it may not be Ibuprofen although I still do not want her to take any non-steroidal
anti-inflammatory drugs until I am absolutely sure it is not due to this particular disease.”140
On December 23, 2010, an ultrasound of plaintiff’s kidneys showed a “[s]maller left
kidney which may be from prior infarctions or infections. There is also mild hydronephrosis
on the left. The exact etiology is uncertain. By ultrasound criteria no evidence for renal
artery stenosis but would suggest CT to further evaluate the possible causes for left-sided
hydronephrosis.”141
On February 10, 2011, Dr. Rodelas “did a creatinine clearance on [plaintiff] and it came
back 91 cc per minute which is excellent”; his physical exam was unremarkable; and he
advised plaintiff not to take any non-steroidal anti-inflammatory drugs.142
On September 6, 2011, plaintiff came in “for follow-up of her chronic kidney disease
stage II.... She has an interesting ultrasound of the kidney in that one of her kidneys [is]
smaller than the other one suggesting that she may have renovascular hypertension. I did
not put her on anything. She is well-controlled on just 5 mg of amlodipine without any
problem with her blood pressure at all. I did not think that she has renovascular hypertension. I think the smaller kidney might be due to a previous infection or she may have
congenital small kidney. The right kidney appears to be normal size and I did a creatinine

140

Admin. Rec. at 506.

141

Admin. Rec. at 647.

142

Admin. Rec. at 645-646.
-33-

clearance on her showing that her GFR was like 91 cc per minute which is pretty good.”143
H. No Appointment MD
On December 13, 2010, plaintiff complained of a cough, sore throat and nasal
congestion and reported that she was using her albuterol three times a day.144
On December 29, 2010, an MRI of plaintiff’s abdomen showed [p]oor visualization of
the pancreas, no hydronephrosis, atrophic left kidney, and hernia in the right lower
quadrant.145
On January 6, 2011, plaintiff reported that her abdominal “area is still very sore. States
it will turn red & has a burning sensation that will radiate toward her umbilious. States is
growing in size in last mo. States when it inflames it gets very hard & she can feel it
distinctly. States when she is walking, she will get ‘strange’ stomach cramps across her
abdomen.”146
On January 17, 2011, plaintiff stated that she was “very sore now. Pain level 6 to 7.
Hurts when she stands/walks. Desc[ribes] it as a burning sensation.”147
On February 17, 2011, plaintiff complained of dizziness and left knee pain, swelling,

143

Admin. Rec. at 643.

144

Admin. Rec. at 821.

145

Admin. Rec. at 830.

146

Admin. Rec. at 820.

147

Admin. Rec. at 819.
-34-

and numbness; and the assessments were knee numbness, knee pain, knee swelling, sinusitis,
tonsilitis, and dizziness.148
On March 28, 2011, plaintiff complained that her allergies were making her asthma
flare and she was still having trouble with her left foot and incontinence; and the assessments
were hypertension, urinary frequency, urinary incontinence, asthma, allergic rhinitis, and
bladder spasms.149
On May 12, 2011, plaintiff reported that she had stepped in a hole and injured her left
ankle; she also complained of a severe dry mouth and chaffing lips.150 Plaintiff was advised
to wrap her left ankle and was prescribed loratadine to help with dry mouth.151
On July 27, 2011, the assessments were sinusitis, hypertension, throat pain, dizziness,
and allergic rhinitis.152
On August 9, 2011, plaintiff had a new complaint of abdominal pain, which she
describes as “burning.”153
On December 8, 2011, the assessments were mixed hyperlipidemia, hypertension, and

148

Admin. Rec. at 818.

149

Admin. Rec. at 817.

150

Admin. Rec. at 816.

151

Admin. Rec. at 816.

152

Admin. Rec. at 815.

153

Admin. Rec. at 814.
-35-

acute nasapharyngitis.154
On February 6, 2012, the assessments included hypertension, hyperlipidemia, and
ventral hernia.155
On May 31, 2012, the assessments were chronic back pain, fibromyalgia, and asthma.156
I. Dr. Borjeson
On January 12, 2011, plaintiff’s CT scan of her abdomen and pelvis showed “left renal
atrophy” and that the “lower ventral abdominal wall does contain a hernia.”157
On January 21, 2011, Dr. Borjeson noted that plaintiff has “an incarcerated incisional
hernia” and the plan was to do an “[o]pen repair with mesh.”158
On February 8, 2011, plaintiff had incarcerated incisional hernia repair with mesh
surgery.159
On February 25, 2011, Dr. Borjeson noted that plaintiff was “healing nicely....”160
On September 2, 2011, Dr. Borjeson noted that plaintiff “underwent open incisional

154

Admin. Rec. at 811.

155

Admin. Rec. at 809.

156

Admin. Rec. at 806.

157

Admin. Rec. at 663.

158

Admin. Rec. at 662.

159

Admin. Rec. at 668.

160

Admin. Rec. at 661.
-36-

hernia repair with underlying mesh ... on 2/8/11. She then underwent bladder sling by Dr.
Hahn and has recurrence. I do not recommend this being repaired laparoscopically as I
would need to take down the bladder flap and would not want to damage the bladder sling
as this is working approximately 80% for the patient and she is happy with this.”161 The plan
was to do an “[o]pen repair with larger overlay mesh.”162
On September 22, 2011, Dr. Borjeson repaired a recurrent incarcerated incisional
hernia.163
On March 8, 2012, Dr. Borjeson repaired plaintiff’s ventral hernia.164
On March 23, 201, Dr. Borjeson noted that plaintiff was doing well except for some
suture pain at the 3:00 stay suture; and the plan was to do a nerve block.165
J. Valley Orthopedics/Dr. Ferry
On February 4, 2011, plaintiff came in to have her left knee pain evaluated.166 Dr. Ferry
recommended “conservative care”, “which would involve rest, ice, and anti-inflammatory

161

Admin. Rec. at 660.

162

Admin. Rec. at 660.

163

Admin. Rec. at 657.

164

Admin. Rec. at 655.

165

Admin. Rec. at 659.

166

Admin. Rec. at 596.
-37-

medications.”167 He stated that he was recommending conservative care because “I do not
see any structural injury requiring surgery. I cannot explain her subjective numbness based
on a peripheral nerve distribution and recommend that she consider evaluation by a
neurologist if it does not improve.”168 Dr. Ferry’s assessments were joint pain, localized in
the knee; and lower back pain.169
K. Canyon State Urology/Dr. Han
On April 18, 2011, plaintiff “present[ed] with incontinence. She complains of leaking
only with heavy stress maneuvers, moderate to severe urge incontinence, and nocturnal
incontinence. Associated symptoms include frequency, urgency, nocturia, and hesitancy.”170
Plaintiff’s physical exam was unremarkable and Dr. Han’s assessments were incontinence
and overactive bladder.171 Plaintiff was to arrange to have a urodynamics study done.172
Plaintiff’s May 3, 2012 “urodynamic studies of the bladder show[ed] a normal capacity
bladder and normal compliance. There was stress incontinence demonstrated.”173

167

Admin. Rec. at 597.

168

Admin. Rec. at 597.

169

Admin. Rec. at 597.

170

Admin. Rec. at 801.

171

Admin. Rec. at 803.

172

Admin. Rec. at 804.

173

Admin. Rec. at 793.
-38-

On May 9, 2011, Dr. Han discussed medical management versus a sling with plaintiff,
advising her that “the sling is synthetic and that there is a risk of erosion and that there is a
small chance that the sling may have to be revised at a later date. I have also told her that the
sling may actually worsen or cause urge incontinence.”174 Plaintiff elected to move forward
with the sling, the surgery for which was done on May 21, 2012.175
On June 23, 2011, an ultrasound of plaintiff’s kidneys showed that “[t]he kidneys
appear intact” and a “contracted urinary bladder.”176
On September 13, 2011, plaintiff “present[ed] with incontinence. Previously the
patient has been treated with antichollnergic medication. The problem has been on-going
since over a year.”177 Dr. Han’s physical exam was unremarkable other than he noted that
plaintiff walks with a limp.178 Dr. Han’s assessments were renal failure, unspecified; and
overactive bladder; and plaintiff was to schedule a flow study.179
L. Dr. Sreecharana
On August 16, 2011, Dr. Sreecharana’s physical “examination of the head, ears, nose,

174

Admin. Rec. at 785.

175

Admin. Rec. at 788.

176

Admin. Rec. at 774.

177

Admin. Rec. at 770.

178

Admin. Rec. at 772-773.

179

Admin. Rec. at 773.
-39-

throat, and neck reveals that the patient has several areas of eccymosis because of easy
bruisability. The heart and lung examination is normal. The examination of the hands
revealed that the patient has decreased sensation in the median nerve distribution of the right
hand. The Tinel’s, Phalen’s, and carpal compression test is positive bilaterally. There is no
triggering of the fingers. There is no atrophy of the muscles. She is able to make a fist and
range of motion of the wrist is normal.”180 Dr. Sreecharana’s assessment was bilateral carpal
tunnel syndrome, right worse than left, but he “want[ed] to get formal electrodiagnostic
study done by a neurologist to assess the severity of carpal tunnel syndrome prior to
recommending surgery.”181
Plaintiff’s September 12, 2011 nerve study was abnormal, showing “evidence of a mild
left median nerve lesion at the wrist.”182
On September 15, 2011, Dr. Sreecharana noted that “[t]here is no change in the
physical examination of the patient since I saw her last. She has decreased sensation in
median nerve distribution of the right hand. The Tinel’s sign, Phalen’s test and carpal
compression test is positive bilaterally. There is no triggering of the fingers. There is no
atrophy of the muscles. She is able to make a fist and the range of motion of wrist is

180

Admin. Rec. at 654.

181

Admin. Rec. at 654.

182

Admin. Rec. at 752.
-40-

normal.”183 Dr. Sreecharana’s assessment was “bilateral carpal tunnel syndrome right worse
than left. Hand cramps and weakness.”184 The plan was as follows: “The patient has atypical
symptoms. Electro diagnostic study does not confirm the diagnosis of carpal tunnel
syndrome on the right side and is only mild on the left side. The patient is more symptomatic
on the right side. I explained to her that I can perform carpal tunnel surgery with the hope
of relieving tingling and numbness and burning pain of the fingers. The carpal tunnel
surgery will not help with hand cramps, fingers locking up, swelling and stiffness of the
fingers. Education pamphlet on carpal tunnel syndrome was given. Briefly the procedure,
complications, risks, benefits and options of treatment were discussed with the patient. I left
the decision to the patient regarding surgery. I also instructed the patient to pay attention
to the symptoms to see whether she has significant issue with the tingling and numbness.”185
II. Nonexamining sources
A. Dr. Ostrowski
On August 25, 2010, Terry Ostrowski, M.D., opined that plaintiff could occasionally
lift/carry 20 pounds, frequently lift/carry 10 pounds, stand/walk 6 hours, sit 6 hours, could
frequently climb ramps/stairs, could occasionally climb ladder/ropes/scaffolds, could
occasionally crawl, and should avoid concentrated exposure to fumes, odors, dusts, gases,

183

Admin. Rec. at 650.

184

Admin. Rec. at 650.

185

Admin. Rec. at 650.
-41-

and poor ventilation.186
B. Dr. Orenstein
On February 15, 2011, Marilyn Orenstein, M.D., opined that plaintiff could
occasionally lift/carry 20 pounds; frequently lift/carry 10 pounds; stand/walk 6 hours; sit 6
hours; frequently climb ramps/stairs; occasionally climb ladders/ropes/scaffolds; frequently
balance, stoop, kneel, and crouch; occasionally crawl; and should avoid concentrated
exposure to vibration, fumes, gases, dusts, poor ventilation, and hazards.187

186

Admin. Rec. at 83-84.

187

Admin. Rec. at 108-109.
-42-