Osburn v. Colvin

Filing 25

ORDER by Judge Laurel Beeler re ECF Nos. 14 & 23. The plaintiff's motion for summary judgment is granted in part and denied in part, and the defendant's cross-motion for summary judgment is granted in part and denied in part. The case is remanded for further proceedings consistent with this order. (lblc1S, COURT STAFF) (Filed on 10/17/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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San Francisco Division

United States District Court
Northern District of California

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DANIELLE ELIZABETH OSBORN,

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Plaintiff,
v.

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CAROLYN W. COLVIN,

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Defendant.

Case No. 15-cv-03599-LB
ORDER GRANTING IN PART AND
DENYING IN PART THE PARTIES’
CROSS-MOTIONS FOR SUMMARY
JUDGMENT; REMANDING CASE FOR
FURTHER PROCEEDINGS
Re: ECF Nos. 14 & 23

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INTRODUCTION
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The plaintiff, Danielle Elizabeth Osborn, suffers from lumbar degenerative-disc disease,
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depression, anxiety, and obesity.1 Ms. Osborn seeks judicial review of the Social Security
Administration’s final decision denying her disability benefits.2 The Administrative Law Judge
(“ALJ”) found that Ms. Osborn’s lumbar degenerative-disc disease, exacerbated by obesity, was a

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severe impairment but declared Ms. Osborn not disabled and denied Social Security Income
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(“SSI”) benefits.3 Ms. Osborn now moves for summary judgment.4 Carolyn Colvin, the Social

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Motion for Summary Judgment — ECF No. 14; Administrative Record (“AR”) 84. Record citations
refer to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page
numbers at the top of documents.
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Id.

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AR 24, 26, 32.

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Motion for Summary Judgment.

ORDER (No. 3:15-cv-3599-LB)

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Security Commissioner (“Commissioner”), opposes the motion and cross-moves for summary

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judgment.5

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The court deems the matter submitted for decision without oral argument. N.D. Cal. Civ. L.R.

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16-5. All parties have consented to this court’s jurisdiction.6 The court grants in part and denies in

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part Ms. Osborn’s motion for summary judgment, and grants in part and denies in part the

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Commissioner’s cross-motion, because the ALJ did not err by giving less weight to Dr. Marion-

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Isabel Zipperle’s consultative examining opinion, but did err by (1) giving less weight to Dr.

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Jackson and Nurse Practitioner Laura McDonald’s co-authored lumbar spine residual-functional-

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capacity assessment, and (2) discrediting Ms. Osborn’s testimony.

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STATEMENT

United States District Court
Northern District of California

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1. Procedural History
On June 7, 2011, Ms. Osborn filed an application for Title II Disability Insurance Benefits and

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Title XVI Supplemental Security Income, alleging a disability onset date of December 1, 2006. 7

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The Social Security Administration (“Administration” or “SSA”) initially denied her applications

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and again upon reconsideration.8 Ms. Osborn filed a timely “Request for Hearing by

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Administrative Law Judge” on April 22, 2012.9

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Administrative Law Judge Amita B. Tracy (the “ALJ”) held an initial hearing on January 17,

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2013, where Ms. Osborn, her non-attorney representative Dan McCaskell, and vocational expert

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Gene Johnson were present.10 At this hearing, the ALJ questioned all parties present; Ms. Osborn

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and Mr. Johnson testified as to her alleged disability.11 The ALJ held a supplemental hearing on

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Cross-Motion for Summary Judgment — ECF No. 23.

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Consent Forms — ECF Nos. 6, 9.

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AR 278-87, 288-94.

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Id. at 110-35, 138-61.

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Id. at 185-86.

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Id. at 77-109.

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Id.

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September 5, 2013, where Ms. Osborn, Mr. McCaskell, and medical expert William Alexander

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Rack were present.12 The ALJ again questioned all parties present; Ms. Osborn and Mr. Rack

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testified as to her alleged disability.13
The ALJ issued an order in December 2013 denying benefits and finding Ms. Osborn not

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disabled.14 She appealed that decision to the Appeals Council the following January.15 The

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Appeals Council denied that request for review in June 2015.16
Two months later Ms. Osborn timely sought judicial review of the final decision denying her

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SSI benefits.17 The Commissioner answered the complaint in December, and Ms. Osborn filed her

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motion for summary judgment in January 2016.18 The Commissioner filed an opposition and

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cross-motion for summary judgment in April.19

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Northern District of California

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2. Summary of Record and Administrative Findings

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2.1 Medical Records

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This section chronologically summarizes Ms. Osborn’s relevant medical visits during the

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specified time period with health care providers. These visits were for her alleged disabilities

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stemming from lumbar degenerative-disc disease, depression, anxiety, and obesity.
2.1.1 Medical records from 2005

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On October 12th, Ms. Osborn had two medical visits. The Healdsburg District Hospital

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emergency department saw Ms. Osborn for pelvic pain, diarrhea, nausea and dizziness.20 Dr. Paris

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Id. at 39-76.

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Id.

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Id. at 20-37.

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Id. at 19.

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Id. at 1-7.

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Complaint — ECF No. 1.

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Answer — ECF No. 12; Motion for Summary Judgment.

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Cross-Motion for Summary Judgment; Reply — ECF No. 24.

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AR 479-481.

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prescribed her Doxycycline, and reported her demeanor as alert, not in distress, and cooperative.21

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An unidentified medical provider at Alliance Medical Center (“Alliance”) saw Ms. Osborn that

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same day for a post-emergency room follow-up visit.22 The report reflected that Ms. Osborn was

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suffering from depression symptoms: “tired, [fluctuating] moods, crying, [more] sleeping,

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[fluctuating] appetite.”23 It also revealed that the emergency department prescribed her Vicodin

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and Doxycycline.24 It concluded with the diagnosis that Ms. Osborn’s physical symptoms

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probably stemmed from residual pelvic pain or infection, and it prescribed her Prozac.25
Ms. Osborn had two Alliance medical reports in November. The first showed that Ms. Osborn

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missed her appointment on the November 2 for depression and obesity.26 On November 11, an
unidentified medical provider reported that she had completed her antibiotics from the emergency

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Northern District of California

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department visit the month prior, had no more stomach pain, and was low on Prozac.27 Also, when

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Ms. Osborn was asked for a urine analysis, “she took the cup and left the clinic.”28
2.1.2 Medical records from 2007

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Ms. Osborn had many medical visits at various hospitals and clinics in 2007. Alexander Valley

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Regional Medical Center physicians treated Ms. Osborn from January 12, 2007 to June 29, 2010

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for a variety of medical issues including pregnancy via Caesarean section, chronic lower-back

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pain, bronchitis, depression, anxiety, and obesity.29
A January 2007 progress note reported that Ms. Osborn was “very angry, yelling and blaming

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[the] clinic for not following the on call and OB tests and medications.”30

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Id.

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AR 451.

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Id.

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Id.

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Id.

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AR 450.

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AR 449.

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Id.

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AR 415-44.

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AR 433.

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The next month, examining physician Dr. David Gorchoff noted that Ms. Osborn had a recent

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Caesarean section and gave birth to a healthy newborn male.31 He included that Ms. Osborn

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“moved wrongly” two days ago and somehow wrenched her back, causing her diffuse lower-back

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pain.32 He observed Ms. Osborn to be in general mild distress, walking with obvious discomfort,

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and having diffuse tenderness in her lower-back.33 He assessed her with lower-back strain,

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prescribed Naprosyn, and recommended rest with heat and cold application.34
In March, treating physician Dr. Dirk van Meurs reported that Ms. Osborn was complaining of

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back and neck pain, and that the Naprosyn was “not cutting it.”35 Ms. Osborn was “anxious and

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angry at times.”36 He diagnosed her with bacterial bronchitis, post-partum depression, and neck

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and lower-back pain.37 He prescribed her Doxycycline, Prozac, baclofen, and tramadol.38
Treating physician Dr. Gary Pace reported in June that Ms. Osborn started having lumbar pain

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during her pregnancy in December, and that she was currently working as a caregiver for a

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quadriplegic woman.39 He wrote that her pain has persisted since delivery, was mainly in the

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lumbar region, and occasionally radiated down her right leg.40 Ms. Osborn claimed that work

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worsened her pain, and that she had not yet been x-rayed.41 Ms. Osborn was trying Naprosyn,

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Tylenol, and baclofen.42 The report said that Ms. Osborn was suffering from depression with some

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improvement, noting that her boyfriend moved out and she no longer used Prozac.43 Dr. Pace’s

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AR 435.

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Id.

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Id.

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Id.

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AR 436.

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Id.

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Id.

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38

Id.

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AR 437-38.

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Id.

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Id.

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42

Id.

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Id.

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prognosis parallels this: her depression was stable with chronic back pain since December.44 For

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her back pain, Dr. Pace ordered x-rays and referred her to physical therapy.45 Dr. Pace noted that

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“[Ms. Osborn] mainly want[ed] pain medication.”46 He opined that Ms. Osborn may have to

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“reconsider her current job situation, because working with her quadriplegic can be rare [sic] in

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her back.”47 After a long discussion on the downside of opiate usage, Dr. Pace prescribed her

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Vicodin with plans to reevaluate treatment after reviewing the x-rays in a week.48 He further noted

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that “she may need to go on disability for a while and see [if] we can really get an aggressive

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rehab program going.”49
Later in June Dr. Pace followed up with Ms. Osborn’s back pain.50 She had been x-rayed and

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off work since the 15th, a period of ten days.51 She thought her back pain somewhat improved

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with unemployment, but “she does have an infant.”52 Ms. Osborn had two Vicodin left, and was

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interested in physical therapy.53 Her lumbar pain continued to radiate down her right side.54

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Difficult movements caused her to freeze.55 Dr. Pace noted “patient has a history of drug abuse,”

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her last methamphetamine use was in November 2006, and she was in rehab.56 He reported her

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depression was stable, and the x-rays showed degenerative changes.57 He recommended physical

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therapy and an MRI.58 He noted that Ms. Osborn would start receiving disability benefits on June

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Id.

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Id.
Id.

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Id.

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AR 439-40.

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Id.
Id.

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Id.

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Id.

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Id.

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Id.

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AR 438.

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48

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Id.

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Id.

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Id.

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11th with a return date of September 1st.59 After discussing pain medication, Dr. Pace suggested

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Ms. Osborn provide a urine toxicology screen.60 She reported that she would rather not take

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opiates.61 Dr. Pace said that they would need a toxicology screen if any opiates were prescribed.62

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He continued her on tramadol, baclofen, and anti-inflammatories.63 Her depression seemed

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stable.64

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Ms. Osborn visited Redwood Regional Medical Group in July for a lumbar-spine MRI.65 Non-

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examining physician Dr. David H. Schmidt compared her MRI with her Healdsburg lumbar-spine

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x-rays.66 He reported disc desiccation and mild disc space narrowing of her L3-4 and L4-5; a small

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paracentral disc protrusion at L3-4; a small central protrusion at L4-5; mild thecal sac effacement
with no demonstrated nerve root impingement; and mild broad-based disc bulging at L5-S1.67

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Northern District of California

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Back at Alexander Valley, Dr. Pace’s August notes showed Ms. Osborn was managing her

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pain through swimming and exercise.68 The pain, however, was disrupting her sleep and barring

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her from grocery shopping.69 The notes also referred to her difficulties with public transportation

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due to her “inability to sit on a bus for an hour and a half.”70 Dr. Pace reviewed and confirmed the

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July MRI findings.71 He recommended she pursue physical therapy and chiropractic and

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acupuncture treatment.72 He noted her stable depression.73 He also commented that Ms. Osborn

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Id.

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Id.
Id.

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Id.

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AR 409, 413-14, 491.

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Id.
Id.

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AR 440.

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Id.

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Id.

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AR 440.

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Id.

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63

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AR 441.

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Id.

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was complacent with her state disability benefits, not involved in furthering her recovery through

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an active rehabilitation program, failed to pursue therapy, and “needs to get actively trying to

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improve [and] . . . get her work life on track.”74
Ms. Osborn had no significant changes in September.75 She was using ibuprofen, and her

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lumbar pain continued to radiate down her right leg into the knee.76 She felt that she was unable to

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work because of the pain.77 She was receiving chiropractic and acupuncture care, and had tried

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physical therapy, “but there has been some mix up in the scheduling.”78 The MRI showed some

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minor disc disease, and minor nerve root compression.79 She was caring for her seven-month-old

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baby.80 Dr. Pace observed her to be alert and in good spirits.81 He continued her treatment with

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ibuprofen, and referred her to receive lumbar epidural steroid injections.82 He also declared on a

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Northern District of California

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renewal-request form for state disability benefits that he was actively treating Ms. Osborn’s

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chronic lumbar pain, and he estimated her recovery in three months.83
In October, treating physician Dr. Manuel Fernandez administered a smooth routine lumbar

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epidural steroid injection on Ms. Osborn, noting her “history of chronic low back pain and some

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right-sided buttock and upper thigh radicular pain.”84
2.1.3 Medical records from 2008

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Ms. Osborn required a second lumbar epidural steroid injection in February 2008 because the

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October injection’s beneficial effects lasted until January (about four weeks earlier).85 Dr.

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Id.

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AR 443.

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76

Id.

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77

Id.

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Id.

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Id.

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80

Id.

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81

Id.

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AR 443, 428.

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AR 429.

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84

AR 477.

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85

AR 472.

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Fernandez successfully administered this second injection with a post-procedure diagnosis of L3-4

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and L4-5 degenerative-disc disease.86
Dr. van Meurs reported in August that despite her continued efforts to lose weight, Ms.

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Osborn’s back pain worsened, and she wanted disability benefits again.87 He observed her ability

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to heel-toe walk, and determined that obesity was exacerbating her lower-back pain.88 He

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recommended she increase her weight-loss efforts.89

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By November, Ms. Osborn suffered a “sudden pinching in her right buttock” and could not

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stand up without rolling onto all fours.90 Dr. van Meurs diagnosed an exacerbation of her chronic

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lower-back pain.91 He prescribed Prevacid, Vicodin, and a return to physical therapy.92
2.1.4 Medical records from 2009

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In June 2009, Dr. van Meurs saw Ms. Osborn, who complained of lower-back pain and

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Northern District of California

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numbness in the right leg, and asked for prescription refills.93 Dr. van Meurs noted that there was

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“no surgery in sight,” and that Ms. Osborn was trying to lose weight.94 He diagnosed her with

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severe exacerbation of her chronic lower-back pain, and he prescribed Percocet.95

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Two months later, Dr. van Meurs reported that Ms. Osborn recently returned from Arizona,

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and was stressed because “her parents want[ed] her out.”96 He observed her to be alert and anxious

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with easy movement.97 He diagnosed her with anxiety and depression, in addition to chronic

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Id.

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AR 425.

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Id.

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Id.

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AR 424.

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Id.

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Id.

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AR 421.

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Id.

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Id.

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AR 420.

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Id.

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lower-back pain exacerbated by obesity.98 He prescribed her Percocet and Zoloft and

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recommended weight loss.99 In October, he further prescribed Percocet and advocated for weight

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loss.100
Ms. Osborn had two medical visits in November. On the 10th, Dr. van Meurs noted that Ms.

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Osborn demanded a Percocet refill appointment notwithstanding her previous two no-show

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appointments, and that “she was very rude.”101 On the 12th, Ms. Osborn had her Percocet

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prescription refilled, was taking it appropriately, and her pain was stable.102 Her depression was

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controlled at this point.103
2.1.5 Medical records from 2010

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In January 2010, Ms. Osborn complained of lower-back pain and numbness down the back of

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Northern District of California

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her right thigh.104 The Percocet no longer helped her, but “someone gave her a 10mg of oxy

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(?codone vs. contin?),” and she slept better.105 Dr. van Meurs diagnosed progressive lower-back

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pain and radicular parethesis down her right leg.106 He prescribed oxycodone, and referred her for

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a lumbo/sacral spine x-ray comparison.107

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The lumbo/sacral spine x-ray was taken in February.108 Non-examining physician Dr. Scott

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Lomax compared this latest x-ray with her June 22, 2007 x-ray.109 He reported findings consistent

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with mild L4-5 and L5-S1 disc narrowing with no definitive changes since the previous x-ray.110

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98

Id.

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Id.

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Id.

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AR 419.

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102

Id.

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Id.

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AR 418.

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105

Id.

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Id.

107

Id.

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AR 409, 490.

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109

Id.

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110

Id.

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In April, Ms. Osborn was upset because her boyfriend suddenly vanished.111 She reported staying

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in bed a lot, and Dr. van Meurs observed her in an alert, tearful, and depressed state.112 He

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diagnosed her with chronic back pain, grief, and depression.113 He prescribed her “oxyco” and

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ordered a urine toxicology screen.114

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Ms. Osborn’s parents kicked her out in June and she was facing a lot of stress.115 She was

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staying with a friend and doing okay with her boyfriend.116 Her ex-boyfriend refused to return her

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child even though she claimed she stopped using drugs, but she did admit to drinking alcohol.117

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She asked for more pain medication, but her urine toxicology screen tested positive for

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amphetamines, methamphetamines, and MDMA/ecstasy.118 Dr. van Meurs tried to explain to her
that she should attend Alcoholics Anonymous and return in two weeks to re-test, but she was

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Northern District of California

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angry and left the clinic very upset when she was not prescribed her pain medication.119 Dr. van

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Meurs diagnosed her with chronic back pain and psychosocial chaos.120
From July to December, Ms. Osborn received multiple ultrasound procedures for her third

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pregnancy.121 In an Alliance health questionnaire, Ms. Osborn stated she had two Caesarean

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sections in 1997 and 2007, had stopped using drugs or alcohol, smoked five cigarettes a day, and

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was unemployed due to her back injury.122 Nurse practitioner (“NP”) Phillipa stated that Ms.

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Osborn had chronic back pain and was 21 weeks pregnant.123

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AR 417.

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Id.

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Id.

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114

Id.

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115

AR 416.

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Id.

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Id.

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118

Id.

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119

Id.

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Id.

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AR 485, 487, 489, 493, 495.

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122

AR 448.

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123

AR 447.

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2.1.6 Medical records from 2011

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Ms. Osborn had a string of emergency department visits from February to April 2011.124 A

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wide range of medical issues were associated with these visits, including hemorrhoids, bronchitis,

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and abdominal pain associated with her third Caesarean section on March 9.125 In February, she

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was thirty-five weeks pregnant, and had stabbing pain from hemorrhoids.126 Examining physician

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Dr. Edward Wang prescribed her Anusol and suppositories.127 On March 8, Ms. Osborn was

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thirty-eight weeks pregnant, and went in with a two-week cough.128 Treating physician Dr.

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Lawrence Gettler diagnosed her with asthmatic bronchitis, and prescribed amoxicillin and

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albuterol.129
Later in March, Ms. Osborn complained of incisional pain from her Caesarean section the

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Northern District of California

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week prior.130 She claimed increased activity led to a ripping sensation.131 Her increased activity

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was due partly to Child Protective Services taking her child after she tested positive for

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methamphetamines.132 The prescribed Vicodin was no longer controlling her pain, and her

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Caesarean doctor, Dr. Kachru, told her to get a pain shot at the emergency department.133 Upon

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inspection of her Caesarean incision, treating physician Dr. Bruce Deas did not see anything to

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suggest wound infection or any other significant intra-abdominal process.134 He opined that Ms.

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Osborn may have “overdone things,” and had resulting pain. The pain shots helped, and Dr. Deas

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124

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Id.

126

AR 467.

127

Id.
AR 463.

129

AR 463-64.

130

AR 459.

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Id.

132

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AR 453, 456, 459-60, 463, 467.

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128

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Id.

133

Id.

134

AR 460.

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prescribed her Percocet.135 Ms. Osborn admitted to smoking, but denied further alcohol and

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methamphetamine use.136
Dr. Gettler saw Ms. Osborn on March 31 for abdominal pain.137 He recommended an

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ultrasound, but she declined, stating that she did not have time for the scan due to her daughter’s

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dental appointment.138 He prescribed her Vicodin instead.139 In April, he saw Ms. Osborn again

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for abdominal pain.140 She requested and received more Vicodin.141 He diagnosed her with

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postoperative abdominal pain of uncertain etiology. 142

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Nurse Indiana Moreno saw Ms. Osborn the next month because, although Ms. Osborn was on

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oxycontin before her pregnancy, she now wanted Vicodin.143 Nurse Moreno referred her to urgent

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care, because narcotic pain medication requests were inappropriate for walk-in patients.144
In May and June, Ms. Osborn received a computed topography (“CT”) scan and a magnetic

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Northern District of California

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resonance imaging (“MRI”) scan at Redwood Regional Medical Group.145 Examining physician

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Dr. Frank Modic’s CT scan revealed post-operative changes related to Ms. Osborn’s recent

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Caesarean section.146 He concluded that there was a visible defect in the lower anterior uterine

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wall, and three small postoperative fluid pockets in the vicinity likely to be seroma or

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hematoma.147 The MRI scan of Ms. Osborn’s lumbar spine showed the following: (1) L3-4 small

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central disc protrusion and annular tear; (2) L4-5 broad-based central disc protrusion producing

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135

Id.

136

Id. 459.

137

AR 456.

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138

AR 57.

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139

Id.

140

AR 453.

141

AR 454.

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142

Id.

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143

AR 446.

144

Id.

145

AR 483-84, 499.

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146

AR 484.

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147

Id.

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borderline central spinal stenosis; and (3) L5-S1 advanced degenerative-disc disease and broad-

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based disc bulging with questionable impingement upon the exiting right L5 nerve root (mild

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degenerative facet changes were also noted).148
Examining physician Dr. Marion-Isabel Zipperle, Ph.D. (of MDSI Physician Services)

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conducted a detailed psychiatric evaluation of Ms. Osborn’s mental health in September 2011.149

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Dr. Zipperle’s report contained the following remarks about Ms. Osborn’s life situation: she drove

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herself to the meeting, and her chief complaints were back problems, bulging discs, sciatic nerves,

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ulcers, stress, depression, and anxiety.150 She had a work injury, but did not receive workers’

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compensation because she did not think she could obtain it.151 She has struggled with
methamphetamine use, culminating with Child Protective Services taking her children.152 “She

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became very depressed when her children were removed and suffers from depression.”153 “She is

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depressed every day and the medication does not work. She wants to get better.”154 She had low

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motivation and energy, had self-esteem and self-confidence issues, and felt worthless, helpless,

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and hopeless.155 She had mood swings, racing thoughts, impulsivity, and poor judgment.156 She

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had difficulty getting along with others and being grateful.157 She had lost interest in enjoyable

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activities, and had become isolated, withdrawn, and emotional.158 She was taking omeprazole,

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Celexa, and ibuprofen.159 She mentioned seeing a therapist named “Annette” for depression.160

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148

AR 499.

149

AR 502-05.

150

AR 502.

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151

Id.

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152

Id.

153

Id.

154

Id.

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155

Id.

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156

Id.

157

Id.

158

AR 502-03.

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159

AR 503.

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160

Id.

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23

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1

Dr. Zipperle included a detailed account of Ms. Osborn’s family, social, and employment

2

history: she had a good and supportive childhood from an intact family, and was a good student

3

until she associated herself with drug-abusing classmates in the eighth grade.161 Her work history

4

was short due to depression and addiction problems, including eight years of cashier and in-home

5

work.162 She experienced a variety of legal troubles from methamphetamine use, grand theft, and

6

driving under the influence.163

7

An account of Ms. Osborn’s living situation showed her attempts to turn her life around ever

8

since Child Protective Services took her children.164 She had been living in a women’s recovery

9

home for three months, went to Narcotics Anonymous meetings, and had a sponsor.165 She was
working on getting her daughter back and had visitation rights.166 She lived with a friend, was able

11
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Northern District of California

10

to “do self-care,” and complete light housework, but she could not “do heavy stuff like laundry or

12

lifting things.”167 She had no hobbies due to her depression.168 She could accomplish tasks, but

13

had trouble remembering appointments and bills.169

14

A series of mental status tests showed Ms. Osborn had no deficits in her concentration,

15

memory, abstract thinking, ability to draw comparisons, or judgment.170 She also had good

16

grooming, hygiene, manners, and eye contact.171 Her attitude was quiet, agitated, and depressed,

17

yet she spoke normally, coherently, and logically.172 Her thoughts were generally negative due to

18
19
161

Id.

162

Id.

21

163

Id.

22

164

Id.

165

Id.

166

Id.

24

167

Id.

25

168

Id.

169

Id.

170

AR 504.

27

171

Id.

28

172

Id.

20

23

26

ORDER (No. 3:15-cv-3599-LB)

15

1

self-criticism and rumination over past mistakes.173 Her mood was depressed, withdrawn, tearful,

2

and emotional.174 Dr. Zipperle diagnosed Ms. Osborn with bipolar disorder, polysubstance

3

dependence in remission, self-defeating behavior, and mental health problems.175
Dr. Zipperle’s functional assessment and medical source statement claimed Ms. Osborn’s state

4

of mind would result in moderate deficits in her ability to interact with others, especially

6

coworkers, supervisors, and the general public in cooperative or competitive settings.176 She

7

further opined that Ms. Osborn “could understand and carry out simple and two[-]part

8

instructions,” and could manage complex tasks.177 Dr. Zipperle noted that Ms. Osborn appeared to

9

be a person who could learn and carry out simple new tasks in a typical work environment without

10

additional or special supervision.178 She may have issues with work-related stress, because “stress

11
United States District Court
Northern District of California

5

presses upon her mental health issues, her liability, and depression.”179 “She may have difficulty

12

pacing herself in an eight-hour day as she can dress, and do self-care and some housework, but she

13

has difficulty remembering appointments and everyday things.”180 She “may need the assistance

14

of someone to help her with her funds.”181

15

On September 18, 2011, examining physician Dr. John Alchemy, also of MDSI Physician

16

Services, conducted an internal medicine evaluation of Ms. Osborn’s physical health.182 She had

17

been living in a sober transitional facility since August 18.183 He diagnosed her with chronic

18

lower-back pain radiating to her right knee caused by a 2006 work injury.184 He reviewed her

19
173

Id.

174

Id.

21

175

Id.

22

176

AR 505.

177

Id.

178

Id.

24

179

Id.

25

180

Id.

181

Id.

182

AR 509-13.

27

183

AR 510.

28

184

AR 513.

20

23

26

ORDER (No. 3:15-cv-3599-LB)

16

1

MRI, and reported no objective findings of radiculopathy or nerve root compression.185 His

2

functional assessment concluded that because she had no postural difficulties, she had no

3

condition that would impose limitations for twelve or more continuous months.186
Ms. Osborn visited Sutter Health’s emergency room in October for more Vicodin.187

4
5

Examining physician Dr. Edward Hard noted that Dr. Sheppard held off on giving her narcotics

6

during a similar recent trip to the same emergency department in August.188 When Dr. Hard asked

7

her about this, she responded that she had stopped abusing narcotics, yet still wanted more

8

Vicodin.189 Dr. Hard noted that he was cautious about giving her additional narcotics if she really

9

was in recovery.190 Ultimately, Ms. Osborn did not receive her requested Vicodin, and was
prescribed Toradol instead.191 Dr. Hard advised against further narcotic refills in the emergency

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Northern District of California

10

room.192 He diagnosed her with lower-back strain, right hip sciatica, and moderate obesity at 225

12

pounds.193
By October, Ms. Osborn transferred from Alliance to Santa Rosa Community Health Centers,

13
14

which marked the beginning of a lengthy treatment relationship with Nurse Practitioner (“NP”)

15

Laura McDonald.194 NP McDonald analyzed and summarized her medical history: a lumbar-spine

16

MRI showing degenerative-disc disease and some disc protrusion, a referral from Alliance for a

17

neurosurgery consult, and good pain management with daily Vicodin.195 She noted her history of

18

methamphetamine abuse, and time spent at a women’s treatment center in 2011 resulting in

19
20
185

Id.

21

186

Id.

22

187

AR 551-52.

188

AR 551.

189

Id.

24

190

AR 552.

25

191

Id.

192

Id.

193

Id.

27

194

AR 547-48.

28

195

AR 547.

23

26

ORDER (No. 3:15-cv-3599-LB)

17

1

sobriety.196 Ms. Osborn felt that, unlike oxycodone, Vicodin did not “wake up” her addiction.197

2

NP McDonald’s screening showed that Ms. Osborn was negative for depression and anxiety.198

3

NP McDonald assessed lumbar back pain, depression, drug abuse in remission, and tobacco

4

abuse.199 She referred Ms. Osborn to physical therapy, and encouraged weight loss and exercise.200

5

She also prescribed Vicodin for her lumbar back pain.201
NP McDonald followed up with Ms. Osborn’s back pain twice in November and December.202

6
7

In November, she gave her more Vicodin for her lumbar back pain after a urine drug screen

8

showed her negative for everything.203 Ms. Osborn was supposed to continue with exercise and

9

weight loss.204 In December, Ms. Osborn had a new complaint of abdominal epigastric pain.205 NP
McDonald gave her Omeprazole for her abdominal epigastric pain, and more Vicodin for her

11
United States District Court
Northern District of California

10

lumbar back pain.206
2.1.7 Medical records from 2012

12

A January lumbar-spine MRI revealed that Ms. Osborn was suffering from the following

13
14

conditions: (1) L3-4 dehydrated disc and very mild narrowing, 3 mm right posterolateral

15

protrusion with annular fissure and crowding of the right subarticular gutter, and patent neural

16

foramina; (2) L4-5 subtle annular fissuring, a 3 mm broad-based protrusion and crowding of the

17

left ubarticular gutter, and facet capsular tissue and ligamentum flavum thickening; and (3) L5-S1

18

slight anterolisthesis across dehydrated mildly narrowed disc, a broad-based 3 mm protrusion and

19
20
196

Id.

21

197

Id.

22

198

Id.

199

Id.

200

Id.

24

201

Id.

25

202

AR 544-46.

203

AR 545.

204

Id.

27

205

AR 542-43.

28

206

AR 543.

23

26

ORDER (No. 3:15-cv-3599-LB)

18

1

subtle reactive endplate change suggesting motion segment instability, and moderately severe right

2

and moderate left up-down foraminal narrowing.207 Non-examining Dr. Meghan Blake found no

3

significant changes when she compared this MRI to Ms. Osborn’s June 22 MRI.208 Ms. Osborn

4

stopped taking Vicodin that same month because it was “waking up” her addiction.209 NP

5

McDonald noted that Ms. Osborn would deal with the pain without medication, and continue with

6

weight loss.210 She was negative on a depression screening, and had a pleasant and alert general

7

appearance.211

8

Ms. Osborn had her initial neurosurgical consultation with UCSF treating physician Dr.

9

Jeffery Yablon in February.212 He reviewed her diagnostic MRI, and reported degenerative-disc
disease at L3-4, L4-5 and L5-S1, with minimal stenosis at all levels, and a central protrusion

11
United States District Court
Northern District of California

10

slightly acentric to the left at L4-5.213 Her cervical and thoracic spines were normal.214 Lumbar

12

examination also revealed unremarkable results: full range of motion with no tenderness or

13

spasms.215 He found no evidence of any peripheral compressive neuropathy.216 Neurological

14

testing showed a normal mental status, muscle bulk, and sensory function.217 He observed minimal

15

difficulty with her gait and ability to heel-toe walk.218 His overall assessment was that Ms. Osborn

16

was symptomatic from her three-level degenerative-disc disease, primarily at L4-5, and obesity.219

17

He ultimately opined that it was unwise to operate, and recommended weight loss or gastric

18
19

23
24
25
26
27
28

AR 540-41.

210

AR 540.

211

Id.

212

AR 577-79, 601-04.
AR 577, 601.

214

AR 578, 601-02.

215

AR 578, 602.

216

Id.

217

22

AR 592.

213

21

AR 592-93.

208
209

20

207

Id.

218

Id.

219

Id.

ORDER (No. 3:15-cv-3599-LB)

19

1

bypass.220 He informed her that if she lost 50 pounds and still had significant problems, he would

2

consider a three-level fusion.221
A few months later, Family Nurse Practitioner (“FNP”) Jeni Cooper saw Ms. Osborn for

3
4

medication refills.222 Ms. Osborn’s pain increased in January and February when she started taking

5

care of her young children.223 Ms. Osborn had not started physical therapy yet due to “so much

6

going on in life right [then,]” but stated that she could start in July after her classes ended.224 FNP

7

Cooper prescribed Ms. Osborn tramadol for her lumbar back pain, and noted that she needed to be

8

involved in treating her pain via physical therapy, ice/heat application, lower-back stretches, and

9

anti-inflammatory medications.225
The tramadol did not help Ms. Osborn’s back pain, and she wanted to stop taking it.226 She

10

United States District Court
Northern District of California

11

still had yet to attend physical therapy, citing difficulty in finding childcare, although her recent

12

swimming in a friend’s pool had beneficial results.227 She also complained of right shoulder pain

13

that began two weeks prior, but said she holds her baby on that side.228 Regarding her obesity, she

14

had been dieting and did not want gastric bypass surgery because she “[did not] want to lose too

15

much [weight], [she had] seen friends with ‘all that extra skin.’”229 NP McDonald referred her to

16

physical therapy for her back and shoulder pain.230

17

At the next follow-up appointment, Ms. Osborn had a new complaint of restless leg

18

syndrome.231 NP McDonald noted Ms. Osborn was signing up for the YMCA at the end of

19
220

Id.

221

Id.

21

222

AR 584-85.

22

223

AR 585.

224

Id.

225

AR 584.

24

226

AR 582.

25

227

Id.

228

Id.

229

Id.

27

230

AR 583.

28

231

AR 580-81, 659-60.

20

23

26

ORDER (No. 3:15-cv-3599-LB)

20

1

October when she could afford it.232 She observed her to be alert and oriented, with normal gait

2

and balance.233 She prescribed gabapentin for Ms. Osborn’s restless leg syndrome.234
Ms. Osborn’s weight loss was going well; she lost eleven pounds in November.235 NP

3
4

McDonald refilled her ibuprofen prescription, and started her on acetaminophen.236 Ms. Osborn

5

was still smoking, and the nurse recommended quitting to ease her ulcers and restless leg

6

syndrome.237 In December, she was actively trying to lose weight, and had lost two more

7

pounds.238 Her walking increased, and she could walk for about 60 minutes.239 She could not sit

8

for more than sixty to ninety minutes before her “back [would] start[] killing her.”240
In December 2012, examining physician Dr. Jerilyn Jackson and NP McDonald co-signed a

10

five-page lumbar spine residual-functional-capacity questionnaire detailing Ms. Osborn’s physical

11
United States District Court
Northern District of California

9

limitations.241 They diagnosed her with spinal stenosis of the lumbar region and radiculopathy.242

12

They noted the following: the June MRI showed L4-5 spinal stenosis, L5-S1 advanced

13

degenerative-disc disease, and impingement on the L5 nerve root.243 Her symptoms included back

14

pain radiating down her right leg, which affected her sleep and worsened with prolonged sitting or

15

standing, and a reduced range of motion in forward flexion and extension secondary to pain.244

16

Emotional factors did not contribute to her pain or limitations.245 Her impairments were

17
18

232

AR 580, 659.

19

233

Id.

234

AR 581, 660.

235

AR 657.

21

236

Id.

22

237

Id.

238

AR 655.

239

Id.

24

240

Id.

25

241

AR 595-99.

242

AR 595.

243

AR 595-96.

27

244

AR 596.

28

245

Id.

20

23

26

ORDER (No. 3:15-cv-3599-LB)

21

1

reasonably consistent with the symptoms and functional limitations described in the residual-

2

functional-capacity questionnaire.246 In a typical workday her pain would frequently interfere with

3

attention and concentration needed to perform simple work tasks.247 The medical providers opined

4

that her impairments lasted or could be expected to last at least twelve months.248
Ms. Osborn could walk two city blocks without rest or severe pain.249 She could sit at one time

5
6

for 30 minutes before needing to get up, stand twenty to thirty minutes before needing to sit or

7

walk around, and sit less than two hours total and stand or walk around for about two hours total

8

in an eight-hour working day.250 Every thirty minutes she needed three to five-minute periods of

9

walking around during an eight-hour working day.251 She required a job that permits shifting
positions at will from sitting, standing or walking, and she would sometimes need to take

11
United States District Court
Northern District of California

10

unscheduled breaks every hour for five minutes during an eight-hour working day.252 Prolonged

12

sitting meant her legs should be elevated thirty degrees for fifty percent of a sedentary eight-hour

13

working day.253 She does not need to use a cane or other assistive device with occasional standing

14

or walking.254
In a competitive work situation, Ms. Osborn could lift and carry less than ten pounds

15
16

frequently, ten pounds occasionally, twenty pounds rarely, and never fifty pounds.255 She could

17

never twist, crouch or squat, and could rarely stoop (bend) or climb ladders or stairs.256 She did

18

not have significant limitations with reaching, handling, or fingering.257 Her impairments were

19
246

Id.

247

Id.

21

248

Id.

22

249

Id.

250

AR 597.

251

Id.

24

252

Id.

25

253

Id.

254

Id.

255

AR 598.

27

256

Id.

28

257

Id.

20

23

26

ORDER (No. 3:15-cv-3599-LB)

22

1

likely to produce good days and bad days, and it was unknown if she would be absent from work

2

three or more days per month. The functional-capacity questionnaire concluded by listing 2006 as

3

the earliest date the described symptoms and limitations applied.258
2.1.8 Medical records from 2013

4

Ms. Osborn’s other interaction with Dr. Jackson was in February, when she treated her for

5
6

heavy menstrual bleeding.259 Dr. Jackson assessed her with menorrhagia, and prescribed

7

Provera.260 She also assessed her with dysmenorrhea, and prescribed Vicodin.261 Ms. Osborn was

8

pleasant, alert, and oriented.262
MDSI Physician Services’ examining physician Dr. Farjallah Khoury conducted a consultative

9

neurological evaluation for Ms. Osborn’s chronic back pain in March 2013.263 He reviewed Ms.

11
United States District Court
Northern District of California

10

Osborn’s three lumbosacral MRIs to date: (1) July 2007, showing mild disc space narrowing and

12

disc protrusions at L3-4 and L4-5, with mild disc bulge at L5-S1; (2) June 2011, showing small

13

disc protrusions at L3-4 and advanced degenerative-disc disease at L5-S1; and (3) January 2012,

14

showing no significant changes compared to the previous scans.264 He summarized her present-

15

illness history: “a 33-year-old former nurse who suffered a work related lifting injury while

16

attempting to transfer a patient in 2007, who presents today with continued chronic low back pain,

17

right-sided, progressively getting worse, now constant and severe, stabbing in quality [and]

18

radiating down the right leg to the toes. She has had multiple recent hospitalizations within the last

19

several months due to pain in her back status post intravenous opiate medications with relief of

20

symptoms. She is currently on oral opiates and anti-inflammatories with mild to moderate overall

21

relief, but does not have a home TENS unit. Her last epidural steroid injection course was in 2008

22
23
258

Id.

24

259

AR 650.

25

260

Id.

261

Id.

262

AR 651.

27

263

AR 620-24.

28

264

AR 620.

26

ORDER (No. 3:15-cv-3599-LB)

23

1

with mild to moderate relief of symptoms for approximately two months.”265 She had no recent

2

physical therapy, chiropractic interventions, or acupuncture.266 “She has associated spasms and

3

lower limb instability during ambulation.”267 Her medications were Vicodin, Tylenol, and

4

naproxen.268 Her daily living activities included driving, self-caring, and completing light-duty

5

house chores.269 She has needed increased time to perform her daily living activities.270 She could

6

move independently into the examination room, and sit down without assistance.271 Dr. Khoury

7

diagnosed her with right-sided lumbar radiculitis at L5-S1, gait abnormality, and obesity.272

8

His functional assessment was that Ms. Osborn’s condition would continue to impose mild to

9

moderate overall functional and work-related impairments.273 She could stand or walk for a total
of six hours in a regular workday with frequent breaks for stretching or rest, and could sit for a

11
United States District Court
Northern District of California

10

total of six hours in a regular day with frequent rest breaks.274 She could lift or carry twenty

12

pounds occasionally, and ten pounds frequently, secondary to her chronic pain and lumbar

13

radiculitis.275 Her postural activities were “occasionally climbing, balancing, stooping, kneeling,

14

crouching, and/or crawling secondary to her chronic pain and lumbar radiculitis.”276 Her

15

manipulative activities had “no relevant functional deficits that would restrict reaching, handling,

16

fingering and/or feeling.”277 As to her workplace environmental activities, Ms. Osborn should

17

“only occasionally perform tasks associated with unprotected heights, operating heavy machinery,

18
265

Id.

266

Id.

267

Id.

21

268

AR 621.

22

269

Id.

270

Id.

271

Id.

24

272

AR 623.

25

273

Id.

274

Id.

275

Id.

27

276

AR 624.

28

277

Id.

19
20

23

26

ORDER (No. 3:15-cv-3599-LB)

24

1

working at extreme temperatures, chemicals, dust/fumes/gases, and around excessive noise.”278

2

Dr. Khoury concluded that Ms. Osborn was “at a high fall risk secondary to her gait

3

instability/lumbar radiculitis.”279
Later that month, NP McDonald had a follow-up appointment with Ms. Osborn due to a

4
5

snapping sensation in her back.280 She had gone to the emergency room for evaluation, and asked

6

for another MRI.281 She had been taking depression medication for four days; a depression

7

screening was administered but was negative.282 NP McDonald diagnosed Ms. Osborn with

8

lumbar spinal stenosis, and major depression, single episode.283 For her lumbar spinal stenosis, she

9

prescribed her oxycodone-acetaminophen, and ordered a diagnostic MRI.284 She decreased her

10

venlafaxine prescription (used for depression) because of drowsiness.285
Ms. Osborn reported the Percocet’s successful results to examining physician Dr. Anthony

United States District Court
Northern District of California

11
12

Lim during her next follow-up on April 29, 2013.286 It was working better than Norco and

13

Vicodin, but her two pills per day allotment were insufficient at times.287 Dr. Lim increased her

14

Percocet allocation from two to three pills a day, and wrote that he would let NP McDonald decide

15

if more was needed.288 The next month, examining physician Dr. Parker Duncan increased her

16

oxycodone/Percocet prescription from three to four pills a day.289 In June, Ms. Osborn requested

17

an increase of oxycodone from four to five pills a day, with a new complaint of radiating pain into

18
19

23
24
25
26
27
28

Id.

280

AR 646-47.

281

AR 646.

282

Id.
AR 647.

284

Id.

285

AR 646-47.

286

AR 643.

287

22

Id.

283

21

278
279

20

Id.

288

AR 644.

289

AR 640-42.

ORDER (No. 3:15-cv-3599-LB)

25

1

her upper back, shoulders, neck, and head.290 NP McDonald granted this request, and ordered

2

diagnostic MRIs for her cervical and thoracic spine.291
An MRI of Ms. Osborn’s lumbar spine was taken in July, and Dr. Modic compared this with

4

her June 2011 MRI.292 He found the following. L1-2: normal; L2-3: normal; L3-4: degenerative-

5

disc disease with loss of height and signal from intervertebral disc; stable small central disc

6

protrusion with associated annular tear; L4-5: moderate degenerative-disc disease; central and

7

right paracentral disc protrusion larger than the prior study affecting right lateral recess and

8

displacing the traversing right L5 and S1 nerve roots with moderate central canal stenosis; and L5-

9

S1: advanced degenerative-disc disease with a broad-based disc bulge; this extended into the

10

inferior recess of the neural foramina bilaterally with flattening of the exiting right L5 nerve

11
United States District Court
Northern District of California

3

root.293 He concluded that Ms. Osborn had (1) degenerative-disc disease in the lower lumbar

12

spine; (2) enlarged disc protrusion at L4-5 with a greater impact on the spinal canal and the

13

traversing nerve roots; and (3) significant degenerative-disc disease at L5-S1 with likely

14

impingement on the exiting right L5 nerve root in the neural foramen.294

15

On June 22, 2013, Ms. Osborn had an MRI of her thoracic and cervical spine, both analyzed

16

by examining physician Dr. Douglas Munro.295 Regarding her thoracic spine, he saw some mild

17

degeneration at the mid-disc, evidenced by loss of disc space height and decreased T2 signal, but

18

no central spinal canal or neural foraminal compromise.296 In general, the MRI showed an

19

unremarkable thoracic spine.297 Her cervical spine had C5-6 “disc degeneration with a mild disc

20

bulge and mild osteophytic ridging,” which “create[d] mild-to-moderate central spinal canal

21

stenosis with equivocal cord effacement. Left uncovertebral osteophytosis [was] seen creating a

22
290

AR 638-39.

291

AR 639.

24

292

AR 667.

25

293

Id.

294

Id.

295

AR 668-69.

27

296

AR 668.

28

297

Id.

23

26

ORDER (No. 3:15-cv-3599-LB)

26

1

small left neural foramen. The right neural foramen [was] patent.”298 She also had C6-7 “disc

2

degeneration with a mild broad disc bulge and minimal osteophytic ridging,” which “create[d]

3

minimal central spinal canal stenosis. The neural foramina [were] patent.”299 The cervical-spine

4

report concluded as follows: foramen magnum was widely patent; the cervical cord appeared

5

unremarkable, the hemopoietic marrow signal was normal, and the bony structures and

6

paravertebral soft tissues were felt to be normal. The “Impression” section showed “C5-6 disc

7

bulge and osteophytic ridging creating mild-to-moderate central spinal canal stenosis with

8

equivocal cord effacement”; and “C6-7 mild disc bulge creating minimal central spinal canal

9

stenosis.”300
By August 14, 2013, NP McDonald noted that Ms. Osborn was in terrible pain due to her

11
United States District Court
Northern District of California

10

recent hemorrhoidectomy.301 She had already taken all of her prescribed Percocet and Norco.302

12

NP McDonald temporarily increased her Percocet for surgery recovery, but noted that it would be

13

reduced back to her usual amount the following month.303 She also referred her to neurosurgery to

14

evaluate her recent MRIs.304 Her acute pain from the hemorrhoidectomy, however, continued into

15

the next month.305 Ms. Osborn went to the emergency room a few days after this latest

16

appointment for back pain and a fever; she was diagnosed with pyelo and given Cipro and

17

fluids.306 She asked NP McDonald for something stronger than Norco, and she refilled her

18

Percocet prescription at the previously increased amount.307

19
20
21

298

AR 669.

22

299

Id.

300

Id.

301

AR 689.

24

302

Id.

25

303

Id.

304

AR 689-90.

305

AR 687-88.

27

306

AR 687.

28

307

Id.

23

26

ORDER (No. 3:15-cv-3599-LB)

27

1

After losing the “required 50 pounds,” Ms. Osborn met with Dr. Yablon for a follow-up

2

neurosurgical consultation on September 16.308 At the last neurosurgical evaluation, “her chief

3

complaint was of low back pain.”309 This time, her chief complaint was “of cervical pain radiating

4

down her left arm to all digits of her left hand.”310 He reported that this was “not associated with

5

weakness. There are paresthesias. There are no symptoms in the right upper extremity.”311 There

6

was no neck pain at the last evaluation, but Ms. Osborn “state[d] that the neck pain and left upper

7

extremity radicular symptoms ha[d] been present for the last 4 months.”312 In addition, she still

8

complained of lower-back pain radiating “down her right leg in a typical posterior lateral

9

distribution towards the foot. There are paresthesias. There is no weakness.”313 Her symptoms did

10

not increase with the Valsalva maneuver.314

United States District Court
Northern District of California

11

Dr. Yablon reviewed her three recent MRIs and found the following. Her cervical MRI scan

12

showed bilateral degenerative changes at the uncovertebral joints at C5-6 and C6-7 with foraminal

13

stenosis.315 Her thoracic MRI scan was normal.316 Her lumbar MRI scan showed “mild disc-

14

degeneration at L3-4 and L5-S1[,] but at L4-5 she had a moderately large herniated disc centrally

15

into the right with foraminal and central stenosis.”317

16

He conducted a physical examination of Ms. Osborn and found the following: there were

17

unremarkable mechanical signs in her cervical, thoracic, and lumbar spines; her mental status was

18

normal; she had no cranial nerve palsies; her muscle bulk, tone, and strength was normal; “sensory

19

testing [was] intact”; her deep tendon reflexes were all to seventy percent use in the left lower

20
21

308

AR 691-92.

22

309

AR 691.

310

Id.

311

Id.

24

312

Id.

25

313

Id.

314

Id.

315

Id.

27

316

Id.

28

317

Id.

23

26

ORDER (No. 3:15-cv-3599-LB)

28

1

extremity, but her right knee and ankle jerks were absent; and she had minimally antalgic gait

2

ambulation.318
Dr. Yablon’s assessment and plan was as follows. Ms. Osborn was suffering from significant

3
4

pathology in her cervical and lumbar spines, manifested as neck pain, left upper-extremity

5

radiculopathy, low-back pain, and right lower-extremity radiculopathy.319 As to her cervical spine,

6

he did “not believe she has had adequate conservative therapy,” and he recommended physical

7

therapy and cervical epidural steroids.320 If she failed to respond to this treatment, he would then

8

consider her a candidate for two-level anterior cervical discectomy and fusion at the C5-6 and C6-

9

7 levels.321 “Regarding her thoracic spine, there [was] nothing to do.”322 As for her lumbar spine,
Dr. Yablon gave her the option of either another set of lumbar epidural steroid injections, or

11
United States District Court
Northern District of California

10

surgery in the form of a minimally invasive right L4-5 hemilaminectomy and discectomy.323

12

In October, Ms. Osborn’s hemorrhoidectomy pain had resolved, but she was having terrible

13

sciatica.324 She also had an epidural “that caused really bad pain,” and she did not want another.325

14

NP McDonald noted that she was trying to decide on neurosurgery to get the herniated disk

15

repaired.326 She also felt that she did not need Percocet for pain anymore, and instead wanted to

16

stick with Norco for pain management.327 Ms. Osborn also would like something for anxiety.328 A

17

urine drug screen showed her negative for everything except opiates.329 NP McDonald refilled her

18
19

23
24
25
26
27
28

Id.

320

Id.

321

Id.

322

Id.
Id.

324

AR 684-85.

325

AR 684.

326

Id.

327

22

AR 692.

323

21

318
319

20

Id.

328

Id.

329

Id.

ORDER (No. 3:15-cv-3599-LB)

29

1

Norco prescription, and warned her against utilizing the emergency room for acute pain

2

medication and early refill requests.330 She also started her on hydroxyzine for anxiety.331
In November, Ms. Osborn awoke “with suddenly swollen legs,” and went to the emergency

3
4

department “where she had a w/u that apparently didn’t reveal anything.”332 Despite her attempts

5

to lose weight, she gained 20 pounds in the few weeks before this emergency visit.333 Dr. James

6

Wu assessed her with acute swelling of an unclear etiology.334 He prescribed her furosemide for

7

the swelling, and five days’ worth of Percocet.335
2.2 SSA Non-Examining Physicians

8

2.2.1 Initial claim for disability Drs. Robert C. Scott, M.D. & H. Pham, M.D.

9

In October 2011, SSA non-examining Drs. Scott and Pham reviewed Ms. Osborn’s medical

10

United States District Court
Northern District of California

11

records, including the reports by Drs. Zipperle and Alchemy from MDSI Physician Group.336

12

Dr. Pham listed Ms. Osborn’s Allegations of Impairments as “back problems/discs/pinched

13

sciatic nerve, pinched sciatica nerve, and ulcer/stress.”337 Dr. Scott found that Ms. Osborn suffered

14

from an affective disorder, and a substance-addiction disorder, that caused a mild restriction on

15

Ms. Osborn’s daily activities, and moderate restrictions on her ability to maintain social function,

16

concentration, persistence, and pace.338 Dr. Pham wrote that one or more of Ms. Osborn’s

17

medically determinable impairments were reasonably expected to produce her pain or other

18

symptoms.339 She also wrote that Ms. Osborn’s statements about the intensity, persistence, and

19

functionally limiting effects of the symptoms were not substantiated by the objective medical

20
21

330

Id.

22

331

AR 685.

332

AR 681.

333

Id.

24

334

AR 682.

25

335

Id.

336

AR 111-13.

337

AR 115.

27

338

AR 116.

28

339

AR 117.

23

26

ORDER (No. 3:15-cv-3599-LB)

30

1

evidence alone.340 Dr. Pham decided that the “ADLs” were most informative in assessing the

2

credibility of Ms. Osborn’s statements.341 Dr. Pham assessed the credibility of Ms. Osborn’s

3

statements regarding symptoms considering the total medical and non-medical evidence as

4

“partially credible.”342 She explained this credibility assessment as follows: Ms. Osborn’s

5

“abilities for functioning per ADL and functional accounts were not consistent with her alleged

6

limitations due to mental impairment.”343 Dr. Pham gave both Drs. Zipperle and Alchemy’s

7

opinions “great weight,” and explained this assessment as follows: “no TP opinions in file. CE

8

MSS are consistent with other evidence in file.”344
Dr. Pham completed a physical residual-functional-capacity assessment.345 She rated Ms.

10

Osborn’s exertional limitations as follows.346 She could occasionally (cumulatively 1/3 or less of

11
United States District Court
Northern District of California

9

an eight-hour day) lift and/or carry (including upward pulling) 50 pounds.347 She could frequently

12

(cumulatively 1/3 to 2/3 of an eight-hour day) lift and/or carry (including upward pulling) 25

13

pounds.348 She could stand and/or walk (with normal breaks) for a total of about six hours in an

14

eight-hour workday.349 She could sit (with normal breaks) for a total of about six hours in an

15

eight-hour workday.350 She could push and/or pull (including operation of hand and/or foot

16

controls) “unlimited, other than shown, for lift and/or carry.”351

17
18
19
340

Id.

341

Id.

21

342

Id.

22

343

Id.

344

Id.

345

AR 117-19.

24

346

AR 118.

25

347

Id.

348

Id.

349

Id.

27

350

Id.

28

351

Id.

20

23

26

ORDER (No. 3:15-cv-3599-LB)

31

Dr. Pham also noted Ms. Osborn had postural limitations, and rated them as follows.352 She

1
2

was “unlimited” in climbing ramps/stairs, climbing ladders/ropes/scaffolds, balancing, kneeling,

3

crouching, and crawling.353 She was “frequently” limited in stooping.354 Dr. Pham concluded that

4

Ms. Osborn had no manipulative, visual, communicative, or environmental limitations.355
Dr. Scott completed the mental residual-functional-capacity assessment.356 He noted Ms.

5
6

Osborn had no understanding and memory limitations, and had sustained concentration and

7

persistence limitations.357 He rated her sustained concentration and persistence limitations as

8

follows.358 Her abilities to carry out very short and simple instructions and detailed instructions

9

were not significantly limited.359 Her abilities to maintain attention and concentration for extended
periods, to perform activities within a schedule, maintain regular attendance, and be punctual

11
United States District Court
Northern District of California

10

within customary tolerances were moderately limited.360 She was not significantly limited in her

12

ability to sustain an ordinary routine without special supervision, to make simple work-related

13

decisions, to complete a normal workday and workweek without interruptions from

14

psychologically based symptoms, or to perform at a consistent pace without an unreasonable

15

number and length of rest periods.361 Her ability to work in coordination with or in proximity to

16

others without being distracted by them was moderately limited.362 Dr. Scott explained her

17

sustained concentration and persistence limitations above as “able to sustain a routine of simple

18

tasks under ordinary supervision.”363

19
352

Id.

353

Id.

21

354

Id.

22

355

Id.

356

AR 119-20.

357

AR 119.

24

358

Id.

25

359

Id.

360

Id.

361

Id.

27

362

Id.

28

363

Id.

20

23

26

ORDER (No. 3:15-cv-3599-LB)

32

Dr. Scott also noted Ms. Osborn had social interaction limitations, and rated them as

1

follows.364 Her ability to interact appropriately with the general public was moderately limited.365

3

Her abilities to ask simple questions or request assistance, to maintain socially appropriate

4

behavior, and to adhere to basic standards of neatness and cleanliness were not significantly

5

limited.366 There was no evidence of limitations on her abilities to accept instructions and respond

6

appropriately to criticism from a supervisor, or her ability to get along with coworkers or peers

7

without distracting them or exhibiting behavioral extremes.367 Dr. Scott explained her social

8

interaction limitations above as “depression will limit her tolerance for social interaction, and will

9

restrict her to low public contact settings. [She is] able to relate adequately to familiar coworkers

10

and supervisors in superficial work-related contact.”368 Dr. Scott concluded by noting Ms. Osborn

11
United States District Court
Northern District of California

2

had no adaptation limitations.369

12

The Disability Determination Explanation finished by listing Ms. Osborn’s past relevant work

13

as a caregiver, with additional past work as a cocktail waitress, waitress, and cashier.370 It went on

14

to conclude that Ms. Osborn had the residual functional capacity to perform her past relevant

15

work, which she could do as “actually performed.”371 “The evidence shows that [Ms. Osborn] has

16

some limitations in the performance of certain work activities; however, these limitations would

17

not prevent the individual from performing past relevant work as [a] caregiver.”372 Ms. Osborn

18

was classified as “not disabled.”373

19
20
21

364

AR 119-20.

22

365

AR 120.

366

Id.

367

Id.

24

368

Id.

25

369

Id.

370

AR 120-21.

371

AR 121.

27

372

Id.

28

373

Id.

23

26

ORDER (No. 3:15-cv-3599-LB)

33

2.2.2 Reconsideration request for disability: Drs. Helen C. Patterson, Ph.D. and
Nathan Strause, M.D.

1
2

In March and April 2012, SSA non-examining Drs. Patterson and Strause reviewed Ms.

3

Osborn’s medical records.374 In addition to the records reviewed for the initial claim, both SSA

4

non-examining doctors also reviewed records from Vista Family Health Center.375 The

5

reconsideration report noted that the alleged impairments of back problems/discs/pinched sciatic

6

nerve, pinched sciatica nerve, ulcer/stress, depression, and anxiety, were unchanged since her

7

initial claim for disability.376 It went on to note that no new physical or mental limitations had

8

arisen since the last disability report, and that Ms. Osborn had not worked since then.377

9

Dr. Patterson completed the findings of fact and analysis of evidence.378 She wrote that “Dr.
Zipperle has established [a] pattern of forming extreme conclusions when compared with [the]

11
United States District Court
Northern District of California

10

balance of a record. Nothing in the [medical evidence record] preceding her [examination] shows

12

evidence that [Ms. Osborn] has a bipolar disorder. [Ms. Osborn] alleges anxiety and depression,

13

along with her physical allegations, but she has no history of treatment for a psychiatric

14

disorder.”379 Dr. Patterson briefly summarized Ms. Osborn’s history of methamphetamine abuse,

15

discussions of depression with treating doctors, her claimed abstinence from drugs, a doctor’s

16

refusal to prescribe medication, and a meth-positive urine toxicology screen.380 Thus, Dr.

17

Patterson concluded that the medical evidence record “shows mood symptoms reported but in

18

[the] context of active drug abuse.”381 Dr. Patterson noted that Ms. Osborn “entered a drug rehab

19

program and is indicated to be living in [a] sober living facility.”382 She also wrote that since SSA

20

non-examining Dr. Scott’s review in October 2011, updated treating-source records “have shown

21
374

AR 138-49. AR 150-61 is identical.

375

AR 139-42.

376

AR 138-39.

24

377

AR 139.

25

378

AR 143.

379

Id.

380

Id.

27

381

Id.

28

382

Id.

22
23

26

ORDER (No. 3:15-cv-3599-LB)

34

1

zero evidence of mood disturbance, despite the claimant having no treatment. On routine

2

screenings at OVs for physical, [Ms. Osborn] has denied any mood disturbance symptoms.”383

3

The report concluded with the assertion that Ms. Osborn “appears to have improved over time and

4

[is] maintaining abstinence from drugs. PRTF completed to indicated condition is currently non-

5

severe.”384

6

Next, Dr. Patterson reported that Ms. Osborn had the following medically determinable

7

impairments: (1) “disorders of back-discogenic and degenerative” (primary priority, severe); (2)

8

peptic ulcer (other priority, non-severe); (3) obesity (other priority, non-severe); (4) affective

9

disorders (other priority, non-severe); and (5) substance addiction disorders (secondary priority,

10

non-severe).385
Dr. Patterson determined affective disorders caused mild restrictions on Ms. Osborn’s daily

United States District Court
Northern District of California

11
12

activities, and mild difficulties in maintaining social function, concentration, persistence, or

13

pace.386 Ms. Osborn had no repeated episodes of decompensation of extended duration.387 Dr.

14

Patterson additionally explained that “objective evidence shows substantial improvement since

15

initial determination five months ago.”388 The listings considered were 12.04 affective disorders,

16

12.09 substance addiction disorders, and 1.04 spine disorders.389

17

Dr. Patterson completed the assessment of policy issues.390 She reported that one or more of

18

Ms. Osborn’s medically determinable impairments could reasonably be expected to produce her

19

pain or other symptoms.391 She wrote that Ms. Osborn’s statements about intensity, persistence,

20

and functionally limiting effects of the symptoms were not substantiated by the objective medical

21
383

Id.

384

Id.

385

AR 143-44.

24

386

AR 144.

25

387

Id.

388

Id.

389

AR 144-45.

27

390

AR 145.

28

391

Id.

22
23

26

ORDER (No. 3:15-cv-3599-LB)

35

1

evidence alone.392 She considered the “ADLs” as most informative in assessing the credibility of

2

Ms. Osborn’s statements.393 She assessed the credibility of her statements regarding symptoms

3

considering the total medical and non-medical evidence as “partially credible.”394 She explained

4

this credibility assessment as “[Ms. Osborn]’s abilities for functioning per ADL and functional

5

accounts are not consistent with her alleged limitations due to mental impairment.”395

6

She weighed Drs. Zipperle and Alchemy’s opinions as “other weight.”396 She explained this as

7

follows: Dr. Alchemy’s “functional assessment is supported by his objecting findings. I assign him

8

other [weight] because of MRI (2/1/2010) indicated evidence I feel some postural. Dr. Zipperle’s

9

report contains [diagnoses] and conclusions that have no objective support elsewhere in the record.
Updated records from [primary care provider] show signs of active mood disorder. [Dr.

11
United States District Court
Northern District of California

10

Zipperle’s] report is read but not given weight. No limitations.”397
Dr. Strause conducted the physical residual-functional-capacity assessment.398 He rated Ms.

12
13

Osborn’s exertional limitations as follows.399 She could occasionally (cumulatively 1/3 or less of

14

an eight-hour day) lift and/or carry (including upward pulling) 20 pounds.400 She could frequently

15

(cumulatively 1/3 up to 2/3 of an eight-hour day) lift and/or carry (including upward pulling) 10

16

pounds.401 She could stand and/or walk (with normal breaks) for a total of about six hours in an

17

eight-hour workday.402 She could sit (with normal breaks) for a total of more than six hours on a

18
19
20
392

23
24
25
26
27
28

Id.

394

Id.

395

Id.
Id.

397

Id.

398

AR 146.

399

Id.

400

22

Id.

393

396

21

Id.

401

Id.

402

Id.

ORDER (No. 3:15-cv-3599-LB)

36

1

sustained basis in an eight-hour workday.403 She could push and/or pull (including operation of

2

hand and/or foot controls) “unlimited, other than shown, for lift and/or carry.”404
Dr. Strause also noted Ms. Osborn had postural limitations, and rated them as follows.405 She

3
4

was “unlimited” in climbing ramps/stairs, and balancing.406 She could never climb

5

ladders/ropes/scaffolds.407 She could occasionally stoop.408 She was “frequently” limited in

6

kneeling, crouching, and crawling.409 Dr. Strause found that Ms. Osborn had no manipulative,

7

visual, communicative, or environmental limitations.410 He additionally explained that for both her

8

Title II and Title XVI claims, “there is continuous [medical record evidence] from 2006 until the

9

present continuously documenting her [lumbar-spine] condition. An RFC at the DLI would not be
significant[ly] different from this RFC.”411 He went on to opine that even though the initial

11
United States District Court
Northern District of California

10

disability determination report from September 18, 2011 gave Ms. Osborn no limitations, “her

12

back is persistent and subsequent MER indicates that her pain is reasonably controlled with

13

Vicodin.”412 Not one MER since the previous claim and the CE report had adequately reported

14

back, motor, or neurological evaluations.413 However, three MRIs of Ms. Osborn’s lumbar spine

15

have been reported (2007, 2010, and 2011) which “all indicated [degenerative-disc disease], disc

16

bulging, effacement of thecal sac and the most recent indicating advanced [degenerative-disc

17

disease] with impingement of the L5 nerve root. This is strong objective data. This evidence

18

supports her allegations over the period from 2006 until the present.”414

19
403

Id.

404

Id.

21

405

Id.

22

406

Id.

407

Id.

408

Id.

24

409

Id.

25

410

AR 147.

411

Id.

412

Id.

27

413

Id.

28

414

Id.

20

23

26

ORDER (No. 3:15-cv-3599-LB)

37

1

Dr. Strause noted that “although [Ms. Osborn’s] [symptoms] are not always persistent she has

2

had significant radicular [symptoms] and severe pain requiring significant narcotics and epidurals.

3

Therefore [he] [felt] that some weight must be given to the alleged limitations reported at PCP

4

visits and in function report (affected by medication suppressing her pain).”415 He especially took

5

into consideration the prolonged history of Ms. Osborn’s condition.416 His recommended

6

limitations also included allowances for activities that “would potentially aggravate [Ms. Osborn’s

7

condition] by increasing pressures in the thecal sac, the documented abnormalities in the lumbar

8

spine, the spinal cord, and the nerve roots.”417 Dr. Strause concluded by noting Ms. Osborn’s “GI

9

ulcer and stress GI problems do not indicate any limitations.”418
As to Dr. Zipperle’s opinion, Dr. Strause noted it was more restrictive than his findings by

11
United States District Court
Northern District of California

10

explaining that it “relies heavily on the subjective report of symptoms and limitations provided by

12

[Ms. Osborn], and the totality of the evidence does not support the opinion. The opinion is without

13

substantial support from other evidence of record, which renders it less persuasive. [The] opinion

14

is an overestimate of the severity of [Ms. Osborn’s] restrictions/limitations and based only on a

15

snapshot of [her] functioning.”419
Dr. Strause listed Ms. Osborn’s past relevant work as caregiver, with additional past work as a

16
17

cocktail waitress, waitress, and cashier.420 He determined Ms. Osborn had the residual functional

18

capacity to perform her relevant past work, which can be performed as “actually performed.”421

19

“The evidence shows that [Ms. Osborn] has some limitations in the performance of certain work

20

activities; however, these limitations would not prevent the individual from performing past

21

relevant work as [a] caregiver.”422 Ms. Osborn was again classified as “not disabled.”423

22
415

Id.

416

Id.

24

417

Id.

25

418

Id.

419

AR 148.

420

Id.

27

421

Id.

28

422

Id.

23

26

ORDER (No. 3:15-cv-3599-LB)

38

1

2.3 Initial Hearing Before the ALJ: January 17, 2013

2

Ms. Osborn, her non-attorney representative Dan McCaskell, and vocational expert Gene

3

Jackson were all present before the ALJ at the initial hearing.424 First, Mr. McCaskell confirmed

4

that Ms. Osborn’s alleged severe impairments were a lumbar condition, depression, anxiety, and

5

obesity.425 Next, Ms. Osborn was questioned and testified about how her impairments have

6

affected her life in support of her disability claim.426
2.3.1 Ms. Osborn’s testimony

7

Ms. Osborn testified to the following: she was 221 pounds at the hearing, and recently lost 20

8
9

pounds in four months from walking and dietary changes.427 She had three children — ages
fifteen, five, and two — and they all moved back in with her parents.428 She has received state

11
United States District Court
Northern District of California

10

disability in the past, but not workers’ compensation.429 She drove her kids to and from school five

12

days a week, received her GED, and had not worked since December 1, 2006 due to her back pain

13

“killing [her].”430 Ms. Osborn was working as a caregiver for a quadriplegic woman when she bent

14

over to turn the patient (while pregnant), stood up, and “felt [her] back stop and [she] couldn’t

15

move.”431 Her previous jobs were caregiving, waitressing, and cashiering.432
Ms. Osborn felt that, primarily, her back prevented her from working.433 On good days, she

16
17

could sit for thirty minutes, and then she has to get up and walk around for at least thirty

18

minutes.434 On bad days, it was ten to fifteen minutes of sitting, then ten to fifteen minutes of

19
423

Id.

424

AR 77.

21

425

AR 84-85.

22

426

AR 85-101.

427

AR 85-86.

428

AR 86-87.

24

429

AR 88.

25

430

AR 88-89.

431

AR 89.

432

AR 90-91.

27

433

AR 91.

28

434

Id.

20

23

26

ORDER (No. 3:15-cv-3599-LB)

39

1

getting up and walking around.435 Her right leg has become numb from a pinched nerve.436 At the

2

time of the hearing, she was only taking ibuprofen and Tylenol — no narcotics — because of her

3

drug history.437 May 10, 2011 marked her clean and sober date — including cigarettes — after

4

multiple attempts at residential rehabilitation programs.438 Since rehab she felt physically sore and

5

mentally “not stable,” but she was adjusting.439 Her back hurt worse because she “used to use the

6

meth as . . . medication.”440 She did feel healthier, but her medications were “not really” helping

7

— they were not strong enough and Ms. Osborn felt “the same.”441
She was not taking any mental medication at the time of the hearing.442 Ms. Osborn took

8

Prozac in 2002 and Zoloft during her residential treatment but stopped because she did not like the

10

way Prozac made her feel and Zoloft did not work.443 She was also not receiving any other mental-

11
United States District Court
Northern District of California

9

health treatment at the time of the hearing, but had attended therapy in 2011 and 2012.444 She

12

stopped anxiety and depression therapy in 2011-12 “because [she] didn’t feel [it] was helping [her]

13

and [she] found a new therapist that [she was] thinking about seeing.”445 She has never been

14

hospitalized for her mental health.446
She had had no surgeries, but UCSF Dr. Yablon recommended that a new disc be put in after

15
16

she lost weight.447 Previous steroid injections have helped, but the second time “didn’t help

17
18
435

Id.

436

AR 92.

437

Id.

21

438

AR 92-93.

22

439

AR 93.

440

Id.

441

AR 93-94.

24

442

Id.

25

443

AR 94-95.

444

AR 97.

445

Id.

27

446

Id.

28

447

AR 95.

19
20

23

26

ORDER (No. 3:15-cv-3599-LB)

40

1

because they nicked my spine.”448 This second injection made her “more paralyzed for a few

2

days,” but the first injection helped for a few months.449 She “went to physical therapy in 2007 or

3

2008, and it wasn’t helping.”450 She has also tried the back exercises her doctors told her to do

4

before getting in and out of bed, but “they’re just not helping anymore.”451 She does not need to

5

use a splint or brace, and has never used a TENS unit or cane.452
She described the location of her pain as “all through [her] lower back, mainly from the middle

6
7

to the right more. It shoots a stabbing pain down [her] right leg. [Her] whole right side from about

8

[her] knee up on the side of the . . . [is] all tingly. At night and during the day it just pinches,

9

pinches, stabs, stabs.”453 She was often in pain all day and night, disrupting and causing her to
“barely sleep.”454 Reclining, putting her feet up, and “putting the heating pad” helped her pain.455

11
United States District Court
Northern District of California

10

Her depression and anxiety “doesn’t really affect [her] too much.”456
Her typical day included getting up at 6:30 a.m., making lunch for her kids, and sitting down

12
13

while they got ready for school.457 Her family would help her, and she would drive them to school

14

two miles away.458 She would then return to her parent’s house, and “put [her] feet back up and

15

pretty much watch TV.”459 On good days she gets up every half hour, and on bad days it was

16

every ten or fifteen minutes of walking in circles around the kitchen and through the living

17

room.460 She had on average four bad days and three good days in a week.461

18
448

AR 95-96.

449

AR 96.

450

Id.

21

451

Id.

22

452

AR 96-97.

453

AR 97-98.

454

AR 98.

24

455

Id.

25

456

Id.

457

Id.

458

AR 98-99.

27

459

AR 99.

28

460

AR 99.

19
20

23

26

ORDER (No. 3:15-cv-3599-LB)

41

1

It became harder for her to put on her shoes.462 She testified: “I can lift my left leg over my

2

right leg just fine but my right leg doesn’t want to bend over my left leg to tie my shoes. So then I

3

have to bend over and stress my back out even worse on this side or ask my daughter or somebody

4

to tie my shoe.”463 She could cook, she could not put laundry in, but could fold the laundry with

5

time, and she could grocery shop as long as there was a shopping cart to lean on.464 Outside of the

6

home, she attended AA meetings about three times a week to “sit in the back and soak in the

7

peace.”465 She would use her laptop, and had no hobbies or pets.466 Her parents would help care

8

for her youngest child during the day.467 Finally, during an eight-hour period from 8:00 AM to

9

5:00 PM, she would spend at least four hours reclined.468
2.3.2 Vocational expert Mr. Gene Johnson’s testimony

10

The ALJ first asked the vocational expert (“VE”) to classify Ms. Osborn’s past work.469 He

United States District Court
Northern District of California

11
12

stated that Ms. Osborn was a cashier and waitress, both performed at light exertion level, and

13

home attendant, performed at a medium exertion level.470

14

The ALJ then posed a hypothetical to the VE: whether an individual with the previous jobs

15

described could continue to perform these jobs with Ms. Osborn’s limitations to light work; never

16

climbing ladders, ropes or scaffolds; occasional stooping; frequent kneeling, crouching and

17

crawling; and requiring a sit/stand option for ten to fifteen minutes.471 He answered that a home

18

attendant’s exertion level eliminated it from the outset, and the required sit/stand options eliminate

19
20
461

Id.

21

462

Id.

22

463

Id.

464

AR 99-100.

465

AR 100.

24

466

Id.

25

467

Id.

468

Id.

469

AR 102.

27

470

AR 102-03.

28

471

Id.

23

26

ORDER (No. 3:15-cv-3599-LB)

42

1

cashiering and waitressing.472 The ALJ then asked the VE whether this individual could perform

2

any other work.473 He answered that in the light category, the individual could be an assembler of

3

small products, a school bus monitor, or a bench worker.474 In the sedentary category, the

4

individual could be a telephone order clerk or packing finishing operator.475 He pointed out that all

5

of these jobs would be subject to the sit/stand option, which was not provided for by the SSA’s

6

Dictionary of Occupational Titles.476 The VE explained he was able to provide these answers

7

through analysis of their job descriptions and requirements.477
The ALJ added a limitation to the hypothetical: in both light and sedentary work, the

8
9

individual would require twenty percent time off for additional breaks beyond normal breaks in an
eight-hour work day.478 The VE was unable to provide potential work suitable with this added

11
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10

limitation.479
Mr. McCaskell changed the initial hypothetical from a sit/stand option to a sit/walk and asked

12
13

the VE whether that individual would still be able to perform the aforementioned other work.480

14

The VE responded that bus monitors, order clerks, and packing/coding operators would be unable

15

to walk away from the workstation.481
The ALJ then changed her initial hypothetical to never climbing ladders, ropes or scaffolds;

16
17

occasional stooping; frequent kneeling, crouching and crawling, with a sit/walk option for ten to

18

fifteen minutes.482 The VE was unable to provide any jobs available with these limitations.483

19
472

AR 103-04.

473

AR 104.

21

474

Id.

22

475

Id.

476

AR 104-05.

477

AR 105.

24

478

AR 105-06.

25

479

AR 106.

480

AR 106-07.

481

Id.

27

482

AR 108.

28

483

Id.

20

23

26

ORDER (No. 3:15-cv-3599-LB)

43

The ALJ concluded the hearing by stating that Ms. Osborn would be sent for a neurologist

1
2

consultative examination with an updated medical record.484

3

2.4 Supplemental Hearing Before the ALJ: September 5, 2013

4

Ms. Osborn, Mr. McCaskell, and non-examining medical expert Dr. William Rack were all

5

present before the ALJ at the supplemental hearing.485 Mr. McCaskell informed the ALJ that Ms.

6

Osborn had obtained three more MRIs of her cervical and lumbar spine for submission into

7

evidence.486 The ALJ responded that she would decide at the end of the hearing whether to keep

8

the record open in consideration of the medical expert’s testimony.487 Ms. Osborn and Dr. Rack

9

testified about her disability.
2.4.1 Ms. Osborn’s testimony

10

Ms. Osborn testified that she was living with her fiancé, his parents and sister, and her

United States District Court
Northern District of California

11
12

children.488 She also said that she weighed 215 pounds.489 Since the initial hearing, she had been

13

put on an increased dosage of Percocet, and the “pain in [the] right side of [her] back is so bad

14

now that [she was] limping around because it’s going down [her] leg.”490 She discussed her recent

15

MRIs with her doctors, who put in another referral for neurosurgical evaluation.491 The Percocet

16

helped on good days, but on bad days she required additional ibuprofen.492There had been no

17

recommendation for surgery yet.493 At the time of the hearing, she did not need for a cane or

18

assistive device.494 She started taking venlaxafine in February or March for her mental health

19
20
484

Id.

21

485

AR 39.

22

486

AR 43.

487

Id.

488

AR 46.

24

489

Id.

25

490

AR 46-47.

491

AR 47.

492

Id.

27

493

Id.

28

494

Id.

23

26

ORDER (No. 3:15-cv-3599-LB)

44

1

which had been helping “a little bit.”495 She was not receiving any other treatment, counseling, or

2

therapy for her mental health, but her nurse wanted her to “get into therapy.”496 Ms. Osborn

3

affirmed her sober date of May 10, 2011.497 She described the location and feeling of her pain:

4

“it’s through my whole lower back, mostly on the right side. It’s like a constant stabbing, stabbing,

5

and when I move to walk . . . it’s constantly down my right leg, like a stabbing all the way down.

6

So now when I’m walking, it’s like I can’t even put weight on my right leg.”498 At night, she tried

7

to sleep with ice, heat, and muscle rubs.499 The pain has caused her depression and anxiety, and

8

has affected her concentration but not her memory.500 Ms. Osborn was feeling depressed due to

9

her inability to help around the house and play with her kids.501
Her typical day comprised of standing and sitting for at least three-quarters or eight hours of

10

United States District Court
Northern District of California

11

the day, lying down with ice on her back, then standing and trying to walk.502 Her fiancé

12

accompanied her to the grocery store, and she had to hold onto the cart.503 Her fiancé did the

13

laundry and “deal[t] with the kids,” but she still made their lunch.504 Her fiancé took them to

14

school and helped her shower.505 She could start washing dishes for five minutes, but then her

15

mother-in-law would finish them.506 She started attending paralegal school two nights a week for

16

three hours per night.507 But her back problems and a recent unrelated surgery forced her to

17
18
495

AR 48.

496

Id.

497

AR 48-49.

21

498

AR 49.

22

499

Id.

500

AR 49-50.

501

AR 50.

24

502

Id.

25

503

Id.

504

AR 50-51.

505

AR 51.

27

506

Id.

28

507

AR 51-53.

19
20

23

26

ORDER (No. 3:15-cv-3599-LB)

45

1

occasionally leave class early.508 She alternated between sitting and standing against a wall during

2

class.509
2.4.2 Medical expert Mr. William Rack’s testimony

3
4

First, the medical expert (“ME”) informed the ALJ that he had only reviewed Ms. Osborn’s

5

medical records dating to February 2010 with some undetailed historical information regarding her

6

lower-back treatment dating to February 2008, including an epidural injection.510 He noted that

7

there was only “a single line indicating [Ms. Osborn] had symptoms dating back to 2006,” without

8

any significant history of neurological examination.511 The ME was aware of these time periods

9

only from a historical perspective and without significant information or examination.512
Next, he stated that Ms. Osborn’s primary impairment, from a neurological point of view, was

10

United States District Court
Northern District of California

11

lower-back pain associated with degenerative changes of an osteoarthritic and disc nature. 513 She

12

also suffered associated discomfort into the right, lower extremities which, for a long time, was

13

intermittent, but now appeared constant.514 Despite this problem from a symptom point of view,

14

“there ha[d] not been substantial neurologic abnormality described, per examination,” meaning no

15

atrophy, reflex changes, or consequential losses of strength or sensation.515 He pointed out that

16

Ms. Osborn’s problem did not meet the UCSF neurosurgeon’s criteria for referring her for surgery

17

in February 2012.516 Historically, on the basis of Ms. Osborn’s statements, her condition worsened

18

with constant, right, lower extremity pain, and she had difficulty in maintaining her upright

19

posture because her symptoms.517

20
21

508

Id.

22

509

Id.

510

AR 55-56.

511

AR 56.

24

512

Id.

25

513

AR 57.

514

Id.

515

Id.

27

516

AR 58.

28

517

Id.

23

26

ORDER (No. 3:15-cv-3599-LB)

46

The ME testified that the neurologic aspect was complicated by her poly-substance abuse,

1

bipolar disorder, depression, anxiety, and obesity (but noted her recent weight loss).518 The ME

3

could not comment on her psychological or substance-abuse status, but he opined that her back

4

problem stemmed from mechanical disturbances in her back, namely osteoarthritic and

5

degenerative-disc disease.519 He said “[t]here has not been any distinction [between the]

6

neurologic abnormality associated with these symptoms which is, [in his opinion], the reason that

7

a conservative course of action has been undertaken over this period of time.”520 He went on to

8

opine that if the upcoming neurological assessment presented abnormalities, or pain is at a

9

sufficient magnitude to warrant a different approach, then that would make a big difference (from

10

the disability point of view).521 The ME acknowledged that the MRI studies have been abnormal,

11
United States District Court
Northern District of California

2

and that a repeat study and report would be important and helpful.522
The ALJ asked him whether Ms. Osborn’s impairments met or equaled any impairment

12
13

described in the SSA’s Listings of Impairments.523 He responded that prior to the hearing, he

14

believed the absence of neurologic deficits — despite the presence of back discomfort and

15

complicating factors from the poly-substance abuse — meant she did not meet the impairment

16

criteria listed in Section 1.04 of the SSA’s Listing of Impairments.524 But Ms. Osborn’s worsening

17

pain (in light of her recent weight loss), increasing difficulty getting around, and the “acute

18

assessment” made him lean towards concluding that she met the listed criteria.525 An assessment

19

in six months would be reasonable, particularly concerning the neurosurgical opinion.526

20
21
518

Id.

519

Id.

520

AR 58-59.

24

521

AR 59.

25

522

Id.

523

Id.

524

AR 60.

27

525

Id.

28

526

Id.

22
23

26

ORDER (No. 3:15-cv-3599-LB)

47

The ALJ then asked him to clarify whether Ms. Osborn equaled listing 1.04 or needed further

1
2

assessment.527 The ME responded that “it is much closer at this point to equaling 1.04,” and that

3

he would “feel much more comfortable making that judgment knowing what the recent MRIs have

4

shown, and knowing what the neurosurgeon finds and thinks.”528 The ME was at the time unable

5

to cite to any specific neurological evidence in the record showing Ms. Osborn’s impairments

6

equaled the listed criteria, and highlighted that everything was “really being based on a history of

7

pain without there being objective findings, as far as the neurologic examination is concerned.”529

8

But, as mentioned above, her worsening pain and capabilities made him lean towards concluding

9

that her impairments equaled the listing.530
Moving on to functional and manipulative limitations, the ME testified that Ms. Osborn’s

11
United States District Court
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10

functional limitations would restrict her to the sedentary level of activity.531 Her manipulative

12

limitations included significant restrictions in bending, twisting, turning, crawling, kneeling, or

13

any non-sedentary use of her lower-back and extremities.532 She should also refrain from

14

considerable leg use because “it’s very difficult to do anything with your legs, particularly your

15

hips if, in fact, your back . . . [has] a problem.”533 It would be okay to use her feet in a limited

16

way.534 He opined that there would not be restrictions on her upper extremities, shoulders, head, or

17

neck so long as they did not necessitate motion in the lumbosacral region.535 She could lift things

18

from table height, but should not bend at all to lift anything from the ground or necessitates

19

bending her low-back.536 She could infrequently climb stairs and ramps with handholds.537 She

20
527

23
24
25
26
27
28

AR 61.

529

AR 62.

530

Id.
AR 63.

532

AR 63-64.

533

AR 64.

534

Id.

535

22

Id.

528

531

21

Id.

536

Id.

537

AR 65.

ORDER (No. 3:15-cv-3599-LB)

48

1

should never climb ladders, ropes, or scaffolds, but could occasionally stoop, kneel, crawl, or

2

couch.538 The ME clarified that “occasionally” meant on the lower side of up to one third of a

3

day.539 She should also never be at unprotected heights, or be subject to vibration, but he did not

4

object to her being in contact with hazardous materials or varying temperatures.540 When asked to

5

cite specific evidence supporting these opinions, the ME cited the medical record in general,

6

including references to Ms. Osborn’s MRIs, x-rays, and epidural injections.541
The ALJ asked him how far back Ms. Osborn’s current limitations extended.542 He could not

7

extend her limitations back to 2006 or 2010 because he didn’t “have any good information back to

9

that time,” and only felt comfortable going back to her February 2012 UCSF neurological

10

assessment “which [was] really the first detailed assessment that she has had done, from an

11
United States District Court
Northern District of California

8

examination point of view, indicating how much [of a] problem[,] or lack of [a] problem[,] [was]

12

present.”543

13

Mr. McCaskell questioned the ME about Ms. Osborn’s MRIs that showed evidence of motion

14

segment instability and antalgic gait.544 He did not think that those were major findings compared

15

to an actual loss of reflex or strength in a particular group of muscles, or loss of sensation in a

16

particular area.545 He clarified that he had no argument with the MRI studies, but that they were

17

not indicative of whether neurologic abnormalities were present on examination.546 The ME

18

explained that “[t]he presence of MRIs [as] not an indication of whether there are neurologic

19

changes in the patient. MRIs are an indication that there are changes within the bony structure but

20

not necessarily if there are associated neurologic changes. Those are found on examination of the

21
538

Id.

539

Id.

540

AR 65-66.

24

541

AR 66-67.

25

542

AR 67.

543

Id.

544

AR 69-70.

27

545

AR 70.

28

546

Id.

22
23

26

ORDER (No. 3:15-cv-3599-LB)

49

1

patient.”547 The ME concluded by stating that the most important thing was not that the MRIs —

2

were abnormal (which he conceded), but rather “the neurologic examination of [Ms. Osborn] by a

3

sophisticated neurologist or neurosurgeon . . . as to whether she has changed and whether there are

4

positive findings now that would indicate something more aggressive has to be done to treat

5

her.”548 Mr. McCaskell confirmed that the upcoming UCSF neurological examination would be

6

most important to the ME.549
The ALJ concluded the hearing by stating that she would leave the record open for a month to

7
8

allow submission of the latest MRIs and any additional evidence.550 She also stated that the ME

9

would answer interrogatories to update his opinions after reviewing the additional evidence.551
Finally, the ALJ noted that the previous hearing’s VE hypotheticals did not reflect exhibit 18F, the

11
United States District Court
Northern District of California

10

consultative neurological examination with Dr. Khoury, or the ME’s recent testimony.552

12

Therefore, new hypotheticals would need to be propounded by interrogatory.553

13

2.5 The ALJ’s Administrative Findings

14

On December 4, 2013, the ALJ held that Ms. Osborn was not disabled from December 1, 2006

15

through the decision date.554 She first noted that the record was left open after the supplemental

16

hearing on September 5, 2013.555 No additional evidence was received by the agreed-upon

17

deadline, nor was there a request for additional time.556 The ALJ closed the record “long after the

18

deadline” and based her decision on the record as of the date of the supplemental hearing.557 The

19
20
547

AR 70-71.

21

548

AR 71-72.

22

549

AR 72.

550

AR 72-74.

551

AR 74-75.

24

552

AR 75.

25

553

Id.

554

AR 32.

555

AR 23.

27

556

Id.

28

557

Id.

23

26

ORDER (No. 3:15-cv-3599-LB)

50

1

ALF proceeded through the five steps for determining whether Ms. Osborn was disabled under the

2

Social Security Act.
At step one, the ALJ found that Ms. Osborn had not engaged in substantial gainful activity

3
4

since December 1, 2006.558
At step two, the ALJ found that Ms. Osborn had the following severe combinations of

5

impairments: degenerative-disc disease, osteoarthritis, and obesity.559 Her back pain, exacerbated

7

by obesity, limited her ability to perform basic work activities.560 Her physical impairments thus

8

were severe.561 Her mental impairments of anxiety and depression — treated as one — did not

9

cause more than minimal limitation in the claimant’s ability to perform basic mental work

10

activities, and were therefore non-severe.562 In making this finding, the ALJ considered the

11
United States District Court
Northern District of California

6

following four broad functional areas of mental disorder evaluation set by the SSA Listing of

12

Impairments’ disability regulations (known as the “paragraph B” criteria): (1) activities of daily

13

living; (2) social functioning; (3) concentration, persistence or pace; and (4) episodes of

14

decompensation.563
For activities of daily living, the ALJ found no limitation because of Ms. Osborn’s ability to

15
16

independently self-care and complete housework.564 The only activity affected by her depression

17

was her enjoyment of hobbies.565

18

For social functioning, Ms. Osborn had no limitation due to her ability to cohabitate with a

19

friend.566 The ALJ noted that her children were taken, but due to drug abuse and not depression.567

20
21

558

AR 26.

22

559

Id.

560

Id.

561

Id.

24

562

Id.

25

563

Id.

564

Id.

565

Id.

27

566

Id.

28

567

Id.

23

26

ORDER (No. 3:15-cv-3599-LB)

51

For concentration, persistence or pace, Ms. Osborn had no limitation.568 The ALJ considered

1

Dr. Zipperle’s consultative psychiatric evaluation and bipolar diagnosis, but ultimately gave it

3

little weight.569 This was because the record as a whole did not support the diagnosis because no

4

other treating or examining source gave a similar diagnosis.570 Also, the ALJ reasoned, Dr.

5

Zipperle’s own examination showed no problems with memory, calculations, or concentration.571

6

Ms. Osborn presented herself at the consultative examination in a “depressed, withdrawn, tearful,

7

emotional state of mind,” which caused Dr. Zipperle to predict that she would have problems

8

getting along with others.572 But the ALJ said that there was no evidence that a treating source

9

ever observed her to be in such an emotional state, and that Ms. Osborn’s demeanor at the hearing

10

was not consistent with Dr. Zipperle’s observations.573 Accordingly, the ALJ gave Dr. Zipperle’s

11
United States District Court
Northern District of California

2

opinion little weight.574
The ALJ did not find any episode of decompensation “of extended duration.”575 Because Ms.

12
13

Osborn’s medically determinable mental impairments caused no more than “mild” limitation in

14

any of the first three functional areas and “no” episodes of decompensation which have been of

15

extended duration in the fourth area, the ALJ found them to be non-severe.576

16

At step three, the ALJ found no impairment or combination of impairments that met or

17

medically equaled the severity of one of the listed impairments.577 She found that Ms. Osborn’s

18

spine impairment did not meet or equal Section 1.04 of the Listing of Impairments because there

19

was no evidence of nerve root compression, spinal arachnoiditis, or lumbar spine stenosis.578

20
568

23
24
25
26
27
28

Id.

570

Id.

571

Id.
Id.

573

Id.

574

Id.

575

AR 27.

576

22

Id.

569

572

21

Id.

577

Id.

578

Id.

ORDER (No. 3:15-cv-3599-LB)

52

The ALJ then considered Ms. Osborn’s residual-functional-capacity, finding that she could

1
2

perform sedentary work with limitations of (1) occasionally climbing ramps and stairs; (2) never

3

climbing ladders, ropes or scaffolds; (3) occasionally stooping, kneeling, crawling, and crouching;

4

and (4) never working at unprotected heights or with vibrations.579 In making this finding, the ALJ

5

considered (1) all symptoms and the extent to which these symptoms could reasonably be

6

accepted as consistent with the objective medical evidence and other evidence, and (2) opinion

7

evidence.580 She followed a two-step process in which it must be determined (1) whether there was

8

an underlying medically determinable physical or mental impairment that could be reasonably

9

expected to produce Ms. Osborn’s pain or other symptoms, and if so then (2) evaluate the
intensity, persistence, and limiting effects of Ms. Osborn’s symptoms to determine the extent to

11
United States District Court
Northern District of California

10

which they limit her functioning.581 For this purpose, whenever statements about the intensity,

12

persistence, or functionally limiting effects of pain or other symptoms are not substantiated by

13

objective medical evidence, the ALJ must make a finding on the credibility of statements based on

14

a consideration of the entire case record.582
The ALJ included testimony from Ms. Osborn at both hearings regarding her back injury, pain,

15
16

and treatment.583 She injured her back while working as a caregiver in December 2006, and had

17

not worked since then.584 She was unable to work due to back pain that limited her ability to sit,

18

stand, and walk.585 She had good days when she was able to sit for thirty minutes at a time, and

19

walk for 30 minutes at a time.586 She also had bad days when she was able to sit and walk for ten

20

to fifteen minutes at a time, and spent up to four hours sitting in a recliner with a heating pad.587

21
579

Id.

580

Id.

581

AR 27-28.

24

582

AR 28.

25

583

Id.

584

Id.

585

Id.

27

586

Id.

28

587

Id.

22
23

26

ORDER (No. 3:15-cv-3599-LB)

53

1

She testified that she was not taking any pain medications due to a history of drug abuse prior to

2

rehabilitation in 2011.588 She stopped taking Prozac because she did not like how she felt when

3

taking it, and she stopped taking Zoloft because it did not work.589 She reported feeling healthier

4

without medications, despite increased soreness and mental instability.590 Her depression did not

5

affect her functioning.591 Her typical day included getting her children ready for school, making

6

lunches, taking them to school, cooking, doing laundry, and grocery shopping.592 She depended on

7

her parents to assist her on bad days, which occurred four times per week.593 She also attended

8

Narcotic Anonymous meetings three times per week, and spent time on the computer.594 She had

9

been unable to work due to lower-back pain, which she described as “constant stabbing.”595 She
alleged that the pain made it difficult to move her right leg, therefore she limped when walking.596

11
United States District Court
Northern District of California

10

She further alleged that the pain caused concentration problems.597 She testified that she spent her

12

day managing her pain by applying ice, and that her fiancé and his mother reportedly did all of the

13

household chores.598 She was studying to be a paralegal, and attended classes two nights per week

14

for three hours each night.599 She spent most of the time at school sitting, and was able to stand if

15

necessary.600

16
17
18
588

Id.

589

Id.

590

Id.

21

591

Id.

22

592

Id.

593

Id.

594

Id.

24

595

Id.

25

596

Id.

597

Id.

598

Id.

27

599

Id.

28

600

Id.

19
20

23

26

ORDER (No. 3:15-cv-3599-LB)

54

1

The ALJ considered written statements from Ms. Osborn’s father describing the extent of her

2

daily living capabilities, and found them generally credible.601 The ALJ found that Ms. Osborn’s

3

medically determinable impairments could reasonably be expected to produce her alleged pain and

4

symptoms, but found her statements concerning the intensity, persistence and limiting effects of

5

those symptoms not entirely credible.602 There were objective findings that established the

6

presence of a severe spine impairment, but there were no corresponding neurological deficits.603

7

The ALJ cited the following evidence in the record that she found to weigh against Ms.

8

Osborn’s credibility.604 Ms. Osborn “has avoided going to physical therapy because she is too

9

busy.”605 A treating source advised in 2007 that she “needs to get actively trying to improve and to
get her work life on track.”606 It was noted in 2008 that she was “not very involved in getting

11
United States District Court
Northern District of California

10

better.”607 In 2012, Ms. Osborn was advised that she needed to be involved with treating pain via

12

physical therapy, everyday ice/heat application and lower-back stretches, and anti-inflammatory

13

medication.608 She was also advised that losing 50 pounds would likely eliminate her back pain,

14

yet she declined gastric bypass surgery because she did not want to lose too much weight and look

15

like her friends who had “all that extra skin” after losing weight.609 Her credibility in alleging

16

chronic pain was eroded by drug-seeking behavior.610

17

The ALJ noted three MRI reports showing abnormalities at multiple levels of the spine.611 She

18

also noted Ms. Osborn’s February 2012 evaluation by a UCSF neurosurgeon, whose findings upon

19
20
601

Id.

21

602

Id.

22

603

Id.

604

AR 28-29.

605

Id.

24

606

AR 29.

25

607

Id.

608

Id.

609

Id.

27

610

Id.

28

611

Id.

23

26

ORDER (No. 3:15-cv-3599-LB)

55

1

physical examination were normal.612 No treatment was prescribed, and weight loss was

2

recommended.613 A September 2011 internal medicine evaluation by non-examining Dr. Alchemy,

3

who opined that Ms. Osborn had no functional limitations, failed to account for MS. Osborn’s

4

subjective complaints of pain.614 Accordingly, the ALJ gave this opinion little weight.615
In December 2012, Ms. Osborn’s primary care provider NP McDonald completed a lumbar

5

spine residual-functional-capacity form that listed her functional and postural limitations.616 The

7

ALJ found NP McDonald’s opinion as “not a medical source opinion.”617 Although it was co-

8

signed by Dr. Jackson, there was no evidence that she ever treated Ms. Osborn except for one visit

9

in February 2013 when Ms. Osborn complained of menstrual problems and seasonal allergies.618

10

The ALJ noted that this visit occurred after the residual-functional-capacity form was completed,

11
United States District Court
Northern District of California

6

and that Dr. Jackson did not co-sign any of NP McDonald’s treatment notes.619 In addition, the

12

ALJ noted that the form reflected Ms. Osborn’s symptoms and limitations were present in 2006,

13

even though the treatment period indicated began in October 2012.620 The ALJ found this to

14

suggest that the form was completed based on Ms. Osborn’s own statements as to the nature and

15

extent of her symptoms and limitations, and accordingly gave the opinion little weight.621

16

In March 2013, Ms. Osborn underwent a neurological evaluation by examining Dr. Khoury.622

17

He noted that Ms. Osborn complained of constant, severe, stabbing pain for which she has had no

18

recent treatment except for pain relief (intravenous opiate medications) obtained in the emergency

19
20
612

Id.

21

613

Id.

22

614

Id.

615

Id.

616

Id.

24

617

Id.

25

618

Id.

619

Id.

620

Id.

27

621

Id.

28

622

Id.

23

26

ORDER (No. 3:15-cv-3599-LB)

56

1

room, and oral opiates/anti-inflammatories.623 The only significant abnormalities observed upon

2

physical examination were antalgic/abnormal gait and decreased sensation.624 Dr. Khoury listed

3

Ms. Osborn’s functional, postural, and manipulative limitations, and noted her high fall risk

4

secondary to her gait instability/lumbar radiculitis.625 He also indicated that Ms. Osborn was

5

limited to occasional exposure to unprotected heights, operating heavy machinery, working at

6

extreme temperatures, working with chemicals/dusts/fumes/gases, and working around excessive

7

noise.626 The ALJ gave his opinion great weight.627
The ALJ addressed the ME’s testimony that there was no question of abnormalities in her MRI

8
9

reports, but that such abnormalities were expected considering her age and weight.628 The ME
explained that it was important to correlate the MRI findings with neurological findings, and that

11
United States District Court
Northern District of California

10

the MRI findings were not as important as the neurological findings.629 The ME reported that both

12

Dr. Yablon and Dr. Khoury detected no positive neurological findings upon physical

13

examination.630
In analyzing Ms. Osborn’s drug-seeking behavior, the ALJ considered notes from various

14
15

doctors and nurses in the medical record.631 She considered Ms. Osborn’s concern that narcotic

16

pain medications would “awaken” her drug addiction, when she left a clinic after being asked for a

17

urine sample for drug testing, when she declined opiates after being informed that a urine test

18

would be requested, and her referral to AA in 2010 after a positive urine toxicology screen.632 The

19

ALJ noted that after going through drug rehabilitation in 2011, Ms. Osborn was controlling her

20
21

623

Id.

22

624

Id.

625

AR 29-30.

626

AR 30.

24

627

Id.

25

628

Id.

629

Id.

630

Id.

27

631

Id.

28

632

Id.

23

26

ORDER (No. 3:15-cv-3599-LB)

57

1

pain with exercise and ibuprofen through March 2013 when she went to the emergency room and

2

was prescribed Percocet.633 Her primary care provider had prescribed additional and increased

3

pain medications, but no other treatments.634 Drug screening was ordered, but there was no

4

evidence as to the results.635

5

State agency medical consultants reviewed Ms. Osborn’s case file, and determined she was

6

able to perform work at the medium level of exertion and had no mental impairments.636 The ALJ

7

found their mental assessment as consistent with the record as a whole, but gave their physical

8

assessments little weight because the record was updated with new evidence indicating greater

9

impairment than before.637
In reconciling NP McDonald’s notes — which indicated the existence of severe chronic back

11
United States District Court
Northern District of California

10

pain and significant physical limitations — with the opinions from Drs. Yablon, Khoury, and the

12

ME, the ALJ found that the specialists’ opinions were entitled to greater weight.638 The ME

13

explained that the absence of neurological findings was a relevant indicator as to the severity of

14

Ms. Osborn’s impairment.639 The ALJ noted that Ms. Osborn’s primary care physicians have

15

continued to prescribe pain medications despite her “refusal to cooperate with the requirements of

16

urine testing.”640 Prior to March 2013, when Ms. Osborn resumed taking pain medications, she

17

reported walking for exercise for sixty minutes at a time and her plans to join the YMCA when

18

she could afford to do so.641 The ALJ found that this demonstrated ability to control her pain with

19

exercise “erodes the credibility of her prior and subsequent requests for pain medications, with no

20
21
633

Id.

634

Id.

635

Id.

24

636

Id.

25

637

Id.

638

Id.

639

Id.

27

640

Id.

28

641

Id.

22
23

26

ORDER (No. 3:15-cv-3599-LB)

58

1

corresponding changes in her symptoms or her physician’s findings.”642 In sum, the ALJ found

2

that the residual-functional-capacity assessment was supported by the ME’s testimony, which was

3

given great weight based on his professional qualifications, knowledge of the requirements for

4

disability evaluation under the Social Security Act and Regulations, his familiarity with the record

5

as a whole, and his specific references to evidence from the treating sources.643

6

At step four, the ALJ found that Ms. Osborn was unable to perform any past relevant work.644

7

The VE testified that her past relevant work as a cashier, waitress, cook, and home attendant were

8

all performed above the sedentary level of exertion.645 Accordingly, Ms. Osborn was unable to

9

perform past relevant work.646
At step five, in considering Ms. Osborn’s age, education, work experience, and residual-

11
United States District Court
Northern District of California

10

functional-capacity, the ALJ found that there are jobs that exist in significant numbers in the

12

national economy that Ms. Osborn could perform.647 The ALJ found that Ms. Osborn’s inability to

13

(1) perform more than occasional climbing of ramps and stairs; (2) to climb ladders, ropes, and

14

scaffolds; and (3) to perform more than occasional stooping, kneeling, crawling, and crouching did

15

not have a significant impact on the occupational base of sedentary jobs that she was otherwise

16

able to perform.648 Similarly, the ALJ found that “Ms. Osborn’s need to avoid working at

17

unprotected heights or with [sic] has only a minimal effect on her ability to perform sedentary

18

occupations.”649 The ALJ concluded that, considering Ms. Osborn’s age, education, work

19

experience, and residual-functional-capacity, she was capable of making a successful adjustment

20

to other work that existed in significant numbers in the national economy.650 The ALJ therefore

21
642

Id.

643

Id.

644

Id.

24

645

Id.

25

646

Id.

647

AR 31.

648

AR 32.

27

649

Id.

28

650

Id.

22
23

26

ORDER (No. 3:15-cv-3599-LB)

59

1

found that Ms. Osborn was “not disabled” — as defined in the Social Security Act — from

2

December 1, 2006, through the decision date of December 4, 2013.651

3
ANALYSIS

4
5

1. Standard of Review
District courts have jurisdiction to review any final decision of the commissioner if the

6
7

claimant initiates the suit within sixty days of the decision. 42 U.S.C. § 405(g). District courts may

8

set aside the commissioner’s denial of benefits only if the ALJ’s “findings are based on legal error

9

or are not supported by substantial evidence in the record as a whole.” Vasquez v. Astrue, 572 F.3d
586, 591 (9th Cir. 2009) (internal quotation omitted). “Substantial evidence means more than a

11
United States District Court
Northern District of California

10

mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind

12

might accept as adequate to support a conclusion.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th

13

Cir. 1995). If the evidence in the administrative record supports both the ALJ’s decision and a

14

different outcome, the court must defer to the ALJ’s decision and may not substitute its own

15

decision. See id. at 1039-40; Tackett v. Apfel, 180 F.3d 1094, 1097-98 (9th Cir. 1999).

16
17

2. Applicable Law
An SSI claimant is considered disabled if he suffers from a “medically determinable physical

18
19

or mental impairment which can be expected to result in death or which has lasted or can be

20

expected to last for a continuous period of not less than twelve months,” and the “impairment or

21

impairments are of such severity that he is not only unable to do his previous work but cannot,

22

considering his age, education, and work experience, engage in any other kind of substantial

23

gainful work which exists in the national economy.” 42 U.S.C. § 1382c(a)3(A) & (B).

24

2.1 Five-step analysis to determine disability

25

There is a five-step analysis for determining whether a claimant is disabled within the meaning

26

of the Social Security Act. See 20 C.F.R. § 404.1520. The five steps are as follows:

27
28

651

Id.

ORDER (No. 3:15-cv-3599-LB)

60

Step One. Is the claimant presently working in a substantially gainful
activity? If so, then the claimant is “not disabled” and is not entitled to
benefits. If the claimant is not working in a substantially gainful activity,
then the claimant’s case cannot be resolved at step one, and the evaluation
proceeds to step two. See 20 C.F.R. § 404.1520(a)(4)(i).

1
2
3

Step Two. Is the claimant’s impairment (or combination of impairments)
severe? If not, the claimant is not disabled. If so, the evaluation proceeds to
step three. See 20 C.F.R. § 404.1520(a)(4)(ii).

4
5

Step Three. Does the impairment “meet or equal” one of a list of specified
impairments described in the regulations? If so, the claimant is disabled and
is entitled to benefits. If the claimant’s impairment does not meet or equal
one of the impairments listed in the regulations, then the case cannot be
resolved at step three, and the evaluation proceeds to step four. See 20
C.F.R. § 404.1520(a)(4)(iii).

6
7
8

Step Four. Considering the claimant’s residual functional capacity
(“RFC”), is the claimant able to do any work that he or she has done in the
past? If so, then the claimant is not disabled and is not entitled to benefits. If
the claimant cannot do any work he or she did in the past, then the case
cannot be resolved at step four, and the case proceeds to the fifth and final
step. See 20 C.F.R. § 404.1520(a)(4)(iv).

9
10

United States District Court
Northern District of California

11
12

Step Five. Considering the claimant’s RFC, age, education, and work
experience, is the claimant able to “make an adjustment to other work?” If
not, then the claimant is disabled and entitled to benefits. See 20 C.F.R. §
404.1520(a)(4)(v). If the claimant is able to do other work, the
Commissioner must establish that there are a significant number of jobs in
the national economy that the claimant can do. There are two ways for the
Commissioner to show other jobs in significant numbers in the economy:
(1) by testimony of a vocational expert or (2) by reference to the MedicalVocational Guidelines at 20 C.F.R., part 404, subpart P, app. 2. See 20
C.F.R. § 404.1520(a)(4)(v).

13
14
15
16
17

For steps one through four, the burden of proof is on the claimant. Tackett, 180 F.3d at 1098.

18
19

At step five, the burden shifts to the commissioner. Id.

20
21

3. Application
Ms. Osborn alleges that the ALJ erred in “rejecting” Dr. Zipperle’s medical opinion, NP

22
23

McDonald and Dr. Jackson’s co-authored lumbar spine residual-functional-capacity form, and Ms.

24

Osborn’s testimony.652 The court begins by clarifying that the ALJ did not “reject” any of the

25
26
27
28

652

See generally Motion for Summary Judgment — ECF No. 14.

ORDER (No. 3:15-cv-3599-LB)

61

1

foregoing evidence, but rather accorded the medical opinions “little weight” and deemed Ms.

2

Osborn’s testimony less credible after consideration.653

3
4

3.1 The ALJ Did Not Err by Giving Little Weigh to Dr. Zipperle’s Medical Opinion

5

Social Security regulations distinguish three types of physicians: treating physicians;

6

examining physicians; and non-examining physicians. 20 C.F.R. § 416.927(c), (e); Lester v.

7

Chater, 81 F.3d 821, 830 (9th Cir. 1995). “Generally, a treating physician’s opinion carries more

8

weight than an examining physician’s, and an examining physician’s opinion carries more weight

9

than a reviewing physician’s.” Hollohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (citing
Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). The opinion of a treating physician is given

11
United States District Court
Northern District of California

10

the greatest weight because the treating physician is employed to cure and has a greater

12

opportunity to understand and observe a claimant. See Smolen v. Chater, 80 F.3d 1273, 1285 (9th

13

Cir. 1996).
In determining whether a claimant is disabled, the ALJ must consider each medical opinion in

14
15

the record, together with the rest of the relevant evidence. 20 C.F.R. § 416.927(b); Zamora v.

16

Astrue, No. C 09-3273 JF, 2010 WL 3814179, at *3 (N.D. Cal. Sept. 27, 2010). “If a treating

17

physician’s opinion is ‘well-supported by medically acceptable clinical and laboratory diagnostic

18

techniques and is not inconsistent with the other substantial evidence in [the] case record, [it will

19

be given] controlling weight.’” Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (quoting 20

20

C.F.R. § 404.1527(d)(2)). “If a treating physician’s opinion is not given ‘controlling weight’

21

because it is not ‘well-supported’ or because it is inconsistent with other substantial evidence in

22

the record, the [Social Security] Administration considers specified factors in determining the

23

weight it will be given.” Id. “Those factors include the ‘[l]ength of the treatment relationship and

24

the frequency of examination’ by the treating physician; and the ‘nature and extent of the

25

treatment relationship’ between the patient and the treating physician.” Id. (citing 20 C.F.R. §

26

404.1527(b)(2)(i)-(ii)). “Additional factors relevant to evaluating any medical opinion, not limited

27
28

653

AR 26, 29, 31.

ORDER (No. 3:15-cv-3599-LB)

62

1

to the opinion of the treating physician, include the amount of relevant evidence that supports the

2

opinion[,] . . . the quality of the explanation provided[, and] the consistency of the medical opinion

3

with the record as a whole; the specialty of the physician providing the opinion . . . .” Id. (citing 20

4

C.F.R. § 404.1527(d)(3)-(6)). Nonetheless, even if the treating physician’s opinion is not entitled

5

to controlling weight, it still is entitled to deference. See id. at 632 (citing SSR 96-02p at 4 (Cum.

6

Ed. 1996)). Indeed, “[i]n many cases, a treating source’s medical opinion will be entitled to the

7

greatest weight and should be adopted, even if it does not meet the test for controlling weight.”

8

(SSR 96-02p at 4 (Cum. Ed. 1996)).
Accordingly, “[i]n conjunction with the relevant regulations, [the Ninth Circuit has] developed

10

standards that guide [the] analysis of an ALJ’s weighing of medical evidence.” Ryan v. Comm’r of

11
United States District Court
Northern District of California

9

Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527). “To reject [the]

12

uncontradicted opinion of a treating or examining doctor, an ALJ must state clear and convincing

13

reasons that are supported by substantial evidence.” Id. (quotation and citation omitted). “If a

14

treating or examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may

15

only reject it by providing specific and legitimate reasons that are supported by substantial

16

evidence.” Id. (quotation omitted). Opinions of non-examining doctors alone cannot provide

17

substantial evidence to justify rejecting either a treating or examining physician’s opinion. See

18

Morgan v. Comm’r of Soc. Sec. Admin, 169 F.3d 595, 602 (9th Cir. 1999). An ALJ may rely

19

partially on the statements of non-examining doctors to the extent that independent evidence in the

20

record supports those statements. Id. Moreover, the “weight afforded a non-examining physician’s

21

testimony depends ‘on the degree to which they provide supporting explanations for their

22

opinions.’” See Ryan, 528 F. 3d at 1201 (quoting 20 C.F.R. § 404.1527(d)(3)).

23

Ms. Osborn argues that the ALJ, in rejecting Dr. Zipperle’s lone bipolar diagnosis, arbitrarily

24

substituted her own judgment for a competent medical opinion, played doctor and made her own

25

independent medical findings.654 The Commissioner argues that the ALJ was not diagnosing Ms.

26
27
28

654

Id. at 9.

ORDER (No. 3:15-cv-3599-LB)

63

1

Osborn but rather “validly pointing out that Dr. Zipperle’s assessment finds no other support in the

2

longitudinal medical evidence[.]”655 The court agrees with the Commissioner.
First, Dr. Zipperle is an examining doctor, although she saw Ms. Osborn only once.656 Second,

3
4

non-examining Drs. Patterson and Strause both separately contradicted Dr. Zipperle’s opinion.657

5

They opined that Dr. Zipperle’s diagnosis formed extreme conclusions unsupported by the

6

medical record as a whole.658 Third, the ALJ provided specific and legitimate reasons supported

7

by substantial evidence: no other treating or examining medical source ever diagnosed bipolar

8

disorder; Dr. Zipperle’s own report showed Ms. Osborn’s proficiency in memory, calculations,

9

and concentration; and Ms. Osborn’s hearing demeanor which was inconsistent with Dr.
Zipperle’s observations.659 Fourth, non-examining doctor opinions did not provide the only

11
United States District Court
Northern District of California

10

substantial evidence that the ALJ used in giving Dr. Zipperle’s bipolar diagnosis little weight.660

12

Finally, evidence in the record supports the ALJ’s theory that the opinion is an outlier in the

13

medical record, and the court may not substitute its judgment for that of the ALJ.661

14

A similar recent ruling from this district affirmed an ALJ’s decision to reject a psychiatrist’s

15

opinion because it was not supported by any other evidence in the record. Smith v. Colvin, No. 14-

16

CV-05082-HSG, 2015 WL 9023486, at *8 (N.D. Cal. Dec. 16, 2015). The plaintiff in that case

17

“did not report any symptoms of depression to her treating physicians and denied feeling

18

depressed when asked [by a care provider,]” and “testified that she was not receiving any

19

treatment for mental health issues.” Id. Here, Ms. Osborn consistently denied having depression

20

symptoms to NP McDonald during their many routine check-ups.662 At the initial ALJ hearing she

21

testified that she was on Prozac in 2002, on Zoloft during residential treatment, and dropped

22
655

Cross-Motion for Summary Judgment — ECF No. 23, at 3.

656

AR 502-05.

24

657

AR 143, 147-48.

25

658

Id.

659

AR 26.

660

Id.

27

661

AR 143, 147-48.

28

662

AR 143, 540, 547, 646.

23

26

ORDER (No. 3:15-cv-3599-LB)

64

1

therapy in 2011 or 2012.663 She also testified, however, that no doctor prescribed mental-health

2

medication since the Prozac and Zoloft were stopped, she was no longer on any mental health

3

medication, she was not receiving any mental health treatment, and she had never been

4

hospitalized for her mental health.664 The court finds that the ALJ did not diagnose Ms. Osborn,

5

“play doctor,” or make her own independent medical findings. She simply pointed out the

6

substantial lack of medical evidence corroborating the bipolar diagnosis.

7

Ms. Osborn’s next argument — that Dr. Zipperle’s mental-status examination, which showed

8

no problems with memory, calculations, or concentration, actually supports the bipolar diagnosis

9

— is not convincing. As the Commissioner argues, Dr. Zipperle seemed to exceed Ms. Osborn’s
own allegations regarding her mental health and limitations.665 The lack of problems with

11
United States District Court
Northern District of California

10

memory, calculations, or concentration found by Dr. Zipperle can be contrasted with her finding

12

of moderate limitations with social interaction, work related stress, and pacing difficulties. There

13

is substantial evidence in the record supporting this: Ms. Osborn testified that her back pain was

14

the only pain preventing her from working, she was not taking any mental-health medications or

15

receiving any mental health treatment, she had never been hospitalized for her mental health, and

16

her depression and anxiety “doesn’t really affect [her] too much.”666 Ms. Osborn did not

17

personally claim severe mental limitations, and yet Dr. Zipperle still diagnosed her with bipolar

18

disorder.667
Ms. Osborn contends that “mental impairments are underreported and undertreated” (citing

19
20

Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996)).668 She further argues that there is

21

evidence in the record showing depression symptoms.669 Even if both were true, they are not

22
23
663

AR 94, 97.

24

664

Id.

25

665

Cross-Motion for Summary Judgment at 5.

666

AR 91, 94, 97, 98.

667

See AR 502-05.

27

668

Motion for Summary Judgment at 15.

28

669

Id.

26

ORDER (No. 3:15-cv-3599-LB)

65

1

dispositive on the existence of a mental impairment. Additionally, Ms. Osborn testified that her

2

back pain was the only pain preventing her from working, she was never hospitalized for her

3

mental health, she discontinued treatment for the same, and it did not affect her greatly.670
Ms. Osborn argues that the ALJ substituted her own judgment and “play[ed] doctor” again by

4
5

using her observations of Ms. Osborn’s hearing demeanor in rejecting Dr. Zipperle’s opinion.671

6

Observations about demeanor are not inappropriate. Moreover, as discussed above, evidence in the

7

record supports the ALJ’s conclusion that Dr. Zipperle’s opinion is an outlier in the medical

8

record and that other evidence in the record was inconsistent with a bipolar diagnosis.672 The court

9

may not substitute its judgment for that of the ALJ.
Ms. Osborn also contends that the ALJ failed to provide “legally sufficient reasons” for

10

United States District Court
Northern District of California

11

rejecting Dr. Zipperle’s opinion.673 The Commissioner argues that Dr. Zipperle “appears to have

12

reached her conclusions based on [Ms. Osborn’s] subjective symptom presentation . . . [and] . . .

13

seemed to accept many of [Ms. Osborn’s] claims.”674 The ALJ explained the same: that Ms.

14

Osborn presented herself in a “depressed, withdrawn, tearful, emotional state of mind” which

15

caused Dr. Zipperle to predict her difficulty getting along with others.675 The SSA doctors raised

16

identical concerns: that Dr. Zipperle relied on subjective complaints and the bipolar disorder is

17

unsupported by the medical record.676 Again, the court may not substitute its judgment for the

18

ALJ’s.
“The ALJ need not accept the opinion of any physician, including a treating physician, if that

19
20

opinion is brief, conclusory, and inadequately supported by clinical findings.” Thomas v.

21

Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). First, the ALJ is not required to provide “legally

22
23
670

AR 91, 94, 97, 98.

24

671

Motion for Summary Judgment at 10-11.

25

672

AR 26.

673

Motion for Summary Judgment at 17.

674

Cross-Motion for Summary Judgment at 5.

27

675

AR 26.

28

676

AR 145, 147-48.

26

ORDER (No. 3:15-cv-3599-LB)

66

1

sufficient reasons” for disregarding a brief, conclusory, and inadequately supported physician

2

opinion. See id. (quotations added); see also Sivilay v. Comm’r of Soc. Sec., 32 Fed. App’x 911,

3

913-14 (9th Cir. 2002) (ALJ correctly rejected a psychiatrist’s opinion based on (1) the

4

psychiatrist’s reliance on the claimant’s subjective complaints rather than clinical observations,

5

and (2) the inconsistency between the clinical diagnosis and the treatment notes). Second, Dr.

6

Zipperle’s opinion is brief, conclusory, and not supported by clinical findings. Apart from a few

7

observations about Ms. Osborn’s appearance, the opinion mostly comprises of medical

8

conclusions reached from a single psychiatric evaluation based on self-reporting. For example, she

9

concluded that Ms. Osborn “became very depressed when her children were removed and suffers
from depression . . .[,] [s]he is depressed every day . . .[, and] [s]he also has mood swings . . .

11
United States District Court
Northern District of California

10

[and] problems getting along with other people.”677

12

The court acknowledges the presence of depression, anxiety, and symptoms of mental

13

instability in Ms. Osborn’s medical record.678 Dr. Patterson opined that these occurrences were

14

attributable to problems stemming from Ms. Osborn’s then-active drug abuse.679 She also noted

15

sobriety (starting in May 2011) brought improvement and an absence of mood disturbance.680

16

In sum, the record as a whole supported the ALJ’s conclusion.

17

3.2 The ALJ Erred in Giving Little Weight to NP McDonald and Dr. Jackson’s CoAuthored Lumbar Spine Residual-Functional-Capacity Form

18
19
20
21

Ms. Osborn argues that the ALJ erred by not crediting the treating opinion of Dr. Jackson and
NP McDonald reflected on the lumbar spine residual-capacity questionnaire.681 The ALJ rejected
the nurse practitioner’s opinion because she is not an accepted medical source, and she found no
evidence that Dr. Jackson treated Ms. Osborn, save for one visit in February 2013.682 As support,

22
23
24

677

AR 502

25

678

AR 50, 417, 420, 436-38, 450-51.

679

AR 143.

680

Id.

27

681

Motion for Summary Judgment at 19–21.

28

682

AR 29.

26

ORDER (No. 3:15-cv-3599-LB)

67

1

the ALJ pointed to Dr. Jackson’s failure to sign NP Jackson’s other treatment notes.683 The ALJ

2

also noted that the form reflected Ms. Osborn’s symptoms and limitations from 2006, but the

3

treatment period did not begin until October 2011.684 The ALJ concluded that this suggests that

4

the form was completed based only on Ms. Osborn’s own statements about her limitations and

5

thus gave the form little weight.685

6

The ALJ’s conclusion is belied by the form itself, which gives a detailed basis for the

7

diagnosis (including an MRI), leads with Dr. Jackson’s name on page one, and ends with her

8

signature (and NP McDonald’s).686 There is no basis in the record to ignore the opinion of a

9

treating physician.
Moreover, NP McDonald worked at Vista Family Health Center with Dr. Jackson.687 She had

10

United States District Court
Northern District of California

11

a prolonged treatment history with Ms. Osborn. Even if she alone is not an acceptable medical

12

source and instead is an “other source” that the ALJ may reject with some reasons, those reasons

13

do not exist in the administrative record. See 20 C.F.R. § 404.1502; Britton v. Colvin, 787 F.3d

14

1011, 1013 (9th Cir. 2015) (citing Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012)). For

15

example, an ALJ may accord less weight to a nurse practitioner’s notes if they are based on the

16

plaintiff’s self-reports rather than her independent, objective medical opinion. See Koepke v.

17

Comm'r of Soc. Sec. Admin., 490 F. App’x 864, 866 (9th Cir. 2012).
That is not the case here. The questionnaire is complete, signed by Dr. Jackson, and is based

18
19

on (1) an MRI showing an L4-L5 spinal stenosis, L5-L1 advanced DDD, and an impingement on

20

the L5 nerve root; and (2) positive objective signs, such as reduced range of motion.688 It is

21

consistent with previous MRIs and medical evidence from 2011 and 2012 (as summarized above).

22
23
24

683

Id.

25

684

Id.

685

Id.

686

AR 595-99.

27

687

AR 599

28

688

AR 595-96.

26

ORDER (No. 3:15-cv-3599-LB)

68

In sum, given the extensive treatment history, the bases for the diagnoses (including an MRI

1
2

and objective signs), and Dr. Jackson’s obvious participation in the questionnaire, the ALJ’s

3

conclusion that there was no relationship between NP McDonald and Dr. Jackson is not supported

4

by the record. The court therefore remands the case because the ALJ did not credit the co-authored

5

opinion.

6

3.3 The ALJ Erred By Not Crediting Ms. Osborn’s Testimony

7

An ALJ must not reject a claimant’s pain testimony supported by “objective medical evidence

8

of an underlying impairment . . . based solely on a lack of medical evidence to fully corroborate

9

the alleged severity of pain.” Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005) (citing Bunnell
v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991)). An ALJ may take into account “ordinary

11
United States District Court
Northern District of California

10

techniques of credibility evaluation,” including reputation for truthfulness and inconsistencies in

12

testimony. Id. Additional factors that the ALJ may consider include: (1) the nature, location, onset,

13

duration, frequency, radiation, and intensity of any pain; (2) precipitating and aggravating factors

14

(e.g., movement, activity, environmental conditions); (3) type, dosage, effectiveness, and adverse

15

side-effects of any pain medication; (4) treatment, other than medication, for relief of pain; (5)

16

functional restrictions; and (6) the claimant's daily activities. Id. (citing Bunnell, 947 F.2d at 346).

17

Ms. Osborn argues that the ALJ improperly rejected her testimony due to a lack of objective

18

medical findings even though her MRIs showed spinal abnormalities.689 The court agrees. The

19

ALJ rejected Ms. Osborn’s testimony based on her previous drug-seeking behavior, and instances

20

when Ms. Osborn has not been active in her recovery.690 The ALJ did not identify inconsistencies

21

in Ms. Osborn’s testimony, or a reputation for untruthfulness.691 There is substantial objective

22

medical evidence that shows an underlying impairment, and supports Ms. Osborn’s pain

23

testimony. Treating physician Dr. Pace referred Ms. Osborn for two lumbar epidural steroid

24

injections for pain relief.692 Treating physician Dr. Fernandez, who administered these epidural

25
689

Id. at 19.

690

AR 28-29.

27

691

Id.

28

692

AR 443, 428.

26

ORDER (No. 3:15-cv-3599-LB)

69

1

injections, post-procedurally diagnosed Ms. Osborn with degenerative-disc disease.693 Non-

2

examining physician Dr. Schmidt found disc desiccation, mild disc space narrowing, disc

3

protrusions, and disc bulging in her 2007 MRI.694 Non-examining physician SSA Dr. Strause

4

opined that her three MRIs (2007, 2010, and 2011) all indicated at least degenerative-disc disease,

5

disc bulging, and nerve root impingement, opining that “this is strong objective data” that

6

“supports [Ms. Osborn’s] allegations over the period from 2006 until the present.”695 The

7

assessment by Dr. Jackson and NP McDonald supports the conclusion, too. And the ALJ

8

acknowledged herself that “there are objective findings that establish the presence of a severe

9

spine impairment.”696 Accordingly, the court finds that the ALJ erred in discrediting Ms. Osborn’s

10

testimony.

United States District Court
Northern District of California

11
CONCLUSION

12

Ms. Osborn’s motion for summary judgment is granted in part and denied in part, and the

13
14

Commissioner’s cross-motion for summary judgment is granted in part and denied in part. The

15

case is remanded for further proceedings consistent with this order.

16

This disposes of ECF Nos. 14 and 23.

17

IT IS SO ORDERED.

18

Dated: October 17, 2016
______________________________________
LAUREL BEELER
United States Magistrate Judge

19
20
21
22
23
24
25
693

AR 472.

694

AR 409, 413-14, 491

27

695

AR 147.

28

696

AR 28.

26

ORDER (No. 3:15-cv-3599-LB)

70