Tudor v. Saul

484 F.Supp.3d 717

Debra Cohen TUDOR, Plaintiff,

v.Andrew M. SAUL, Defendant.

Case No. 19-cv-03050-RMI

United States District Court, N.D. California, Eureka Division.

Signed September 3, 2020

Bruce Mason Cohen, BMCA Law Group, A.P.C., Julia Veronica Lee, Los Angeles, CA, for Plaintiff.

Marcelo N. Illarmo, Social Security Administration, Sara Winslow, United States Attorney's Office, San Francisco, CA, for Defendant.

ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

Re: Dkt. Nos. 26, 29

ROBERT M. ILLMAN, United States Magistrate Judge

Plaintiff, Debra Cohen Tudor, seeks judicial review of an administrative law judge ("ALJ") decision denying her application for disability insurance benefits under Title II of the Social Security Act. Plaintiff's request for review of the ALJ's unfavorable decision was denied by the Appeals Council, thus, the ALJ's decision is the "final decision" of the Commissioner of Social Security which this court may review. See 42 U.S.C. §§ 405(g), 1383(c)(3). Both parties have consented to the jurisdiction of a magistrate judge (dkts. 7 & 10), both parties have moved for summary judgment (dkts. 26 & 29), and both parties seek a remand to the ALJ. While Plaintiff seeks remand for the immediate calculation and payment of benefits, Defendant confesses error but seeks a remand for further proceedings.

BACKGROUND

Plaintiff, who is now 56 years old, began her career by earning various advanced degrees in biomedical sciences and electrical engineering from institutions such as Harvard and MIT. See AR at 226, 326; see also Pl.’s Mot. (dkt. 29) at 6. Thereafter, Plaintiff spent the better part of 20 years working in highly specialized positions for employers such as Micron Semiconductor Products and the Intel Corporation. Id. ; see also AR at 222-25. Starting in September of 2014, Plaintiff developed a severe migraine illness that caused progressively worsening and debilitating headaches at a frequency of 10 to 20 days per month, and which precluded her ability to function in the workplace at all. See Pl.’s Mot. (dkt. 29) at 6. As described in her Title II application, Plaintiff's chronic migraines caused her to experience various symptoms including dizziness, fatigue, problems with balance, diminished stamina, tremors, insomnia, nausea and vomiting, pain and pressure in her eyes, as well as sensitivity to sound and light (and a consequential need to rest in a quiet and dark room). AR at 247. In the initial and reconsideration stages of evaluating her application, two non-examining consultants (Drs. Ligon and Kiger) found her migraine illness to be severe, however, they both maintained that there was insufficient evidence to evaluate the claim given that the record before them contained "no indication that there [was] a medical opinion from any medical source." Id. at 127, 136-37. However, prior to the hearing before the ALJ, Plaintiff supplemented her application with voluminous medical records from her treatment providers. See id. at 346-1491.

Plaintiff's more recent primary care provider, Suzanne Sims, M.D., submitted a medical source statement regarding the migraines and their effects on her ability to function. Id. at 1458-84. Initially, Dr. Sims noted that she had been treating Plaintiff for well over two years, with a frequency of treatment sessions every two to four weeks. Id. at 1471. Noting that Plaintiff's migraine illness resulted in severe headaches as often as 10 to 20 days per month, Dr. Sims opined that the migraines were triggered by hormone imbalances, and that the resulting headaches were exasperated by weather changes, allergies, stress, low blood sugar, insomnia, dehydration, and sensitivities to light, sounds, and odors. Id. Dr. Sims opined that Plaintiff's illness had lasted longer than 12 months, and that it could be expected to continue as such because the condition was resistant to treatment and also because emotional factors (depression and anxiety) contributed to its severity. Id. Given the severity of the migraine illness, and the lack of success in effectively treating it with medical intervention, Dr. Sims concluded that Plaintiff would be off-task more than 25% of the time in any work setting, and that Plaintiff could be expected to be totally incapacitated when suffering from the effects of her migraine illness. Id. at 1473, 1475. Consequently, Dr. Sims stated that Plaintiff should be expected to be absent from work for 5 or more days per month due to the need for ongoing medical treatment; and further that she would be unable to complete a normal 8-hour workday due to her symptoms on 5 or more days per month. Id. at 1477. During Plaintiff's migraine flare-ups, which would occur between 10 and 20 days per month, Dr. Sims noted that Plaintiff would need to take unscheduled breaks, averaging 6 hours each, due to pain, nausea, vomiting, and the adverse effects of her medication. Id. at 1483. Lastly, noting that there had been no indication of malingering, Dr. Sims opined that the above-described limitation began in September of 2014. Id. at 1477.

In May of 2018, Plaintiff appeared for a hearing before the ALJ. See id. at 100-120. In pertinent part, Plaintiff testified that after a lengthy career in the engineering field, she experienced a precipitous decline in her health in September of 2014 as a result of the worsening of her migraine illness which rendered her unable to return to work. Id. at 106-07. Starting in September of 2014, Plaintiff's preexisting migraine illness increased in both intensity and frequency such that her symptoms were present between 10 and 20 days per month with pain levels ranging from 7 to 10 on a scale of 1 to 10. Id. at 107-09. On most occasions, Plaintiff would wake up with such a migraine, and if the first round of medication was effective (roughly 60 to 70 percent of the time), the pain would diminish after three or four hours; however, the remaining 30 to 40 percent of the time, when the first round of medication was ineffective, Plaintiff's pain would not diminish enough for her to be functional until an additional two to three hours had passed. Id. at 110-111. Further, there were still occasions when even the second round of medication did not dull her pain enough to render her able to get out of bed. Id. at 111. Given the debilitating effects of the migraines, as well as the side effects of her medications, Plaintiff was generally limited to light chores around the house; and, when the effects of her daily medications had worn off, she was able to occasionally go out in public later in the afternoon. Id. at 112. Plaintiff also testified that, in addition to pain, her migraines also cause nausea and that her anti-nausea medication causes her to be so drowsy that it renders her incapacitated for between 8 and 10 hours. Id. at 115-16. Despite her doctors taking a trial and error approach with various medications between 2014 and 2018, Plaintiff's symptoms largely remained the same. Id. at 116. Lastly, near the end of the hearing, the vocational expert ("VE") testified that if Plaintiff were likely to miss as little as four days of work in an average month, she could neither perform her past relevant work, nor any other work that might be available in the national economy. Id. at 119-20.

Three months later, in August of 2018, the ALJ issued an adverse decision in which he found all of Plaintiff's impairments to be non-severe, and therefore, the ALJ found Plaintiff not disabled at Step Two. Id. at 17-24. Specifically, the ALJ found that Plaintiff's migraine illness was medically determinable; however, without so much as mentioning the findings and opinions of Dr. Sims, the ALJ simply dismissed the entirety of the medical evidence of Plaintiff's migraine illness by stating that the medical records themselves were dated "from either prior to the alleged onset date, or after the date last insured," and that Plaintiff's testimony was, by itself, "insufficient" for a disability finding. Id. at 20-21. The ALJ appears to have employed some circular logic in order to theorize that Plaintiff's headaches were caused by the opiate medications that had been prescribed to treat the headaches themselves, and that Plaintiff's migraine illness was in fact caused by a narcotic dependency. Id. at 22. In support of this theory, the ALJ only cited to a progress note from a hospital visit in September of 2015, during which Dr. Cho opined that it may be possible that Plaintiff's migraine illness might improve if her medicinal regimen were changed from "abortive" medications that were designed to abate the pain associated with her headaches, to "preventive" medications. See id. at 502. However, nowhere in this progress note, nor any of the associated treatment records, is there any indication that Dr. Cho or any other physician had formed an opinion that Plaintiff's migraine illness was rooted in the medications that her physicians had prescribed to treat the illness itself. Indeed, because Plaintiff's physicians spent years using a trial and error approach to treating her migraines, which they consistently noted as being hormonal in origin, Dr. Cho's progress note from September of 2015 actually stated that "[p]reventive medications tried are Nortriptyline Prozac [and were] not much help." Id. Further, the ALJ opined that Plaintiff's migraine illness would simply go away if she were to discontinue her prescribed medications and replace them with Botox injections. Id. at 22. However, the ALJ's opinion failed to take note of the fact that Dr. Cho had in fact surmised that "[B]otox is an option but not a good option." Id. at 205. Once again, without even so much as a mention of the findings and conclusions expressed by Dr. Sims, the ALJ discounted the entirety of Plaintiff's testimony by merely stating that "the documentary medical evidence from the relevant period does not objectively support such severity or frequency [of migraine symptoms]." Id. at 23. In the end, the...