P.E. v. Saul, Case No. 18-cv-07117-JCS

• Decision Date: 17 April 2020
• Docket Number: Case No. 18-cv-07117-JCS
• Citation: 445 F.Supp.3d 306
• Parties: P.E., Plaintiff, v. Andrew SAUL, Defendant.
• Court: U.S. District Court — Northern District of California

445 F.Supp.3d 306

P.E., Plaintiff,

v.Andrew SAUL, Defendant.

Case No. 18-cv-07117-JCS

United States District Court, N.D. California.

Signed April 17, 2020

Patricia L. McCabe, Law Offices of Patricia L. McCabe, Van Nuys, CA, for Plaintiff.

Margaret Branick-Abilla, Social Security Administration Office of the General Counsel, Sara Winslow, United States Attorney's Office Northern District of California, San Francisco, CA, for Defendant.

ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS

Re: Dkt. Nos. 21, 28

JOSEPH C. SPERO, Chief Magistrate Judge

I. INTRODUCTION

Plaintiff P.E.¹ brings this action challenging the final decision of Defendant Andrew Saul,² Commissioner of Social Security (the "Commissioner") denying P.E.’s application for disability benefits under Title II of the Social Security Act, 42 U.S.C. § 1381, et seq. The parties have filed cross motions for summary judgment pursuant to Civil Local Rule 16-5. For the reasons set forth below, P.E.’s motion is GRANTED, the Commissioner's motion is DENIED, and the matter is REMANDED for further administrative proceedings consistent with this order.³

II. BACKGROUND

P.E. is a 58-year-old former janitor with a fourth-grade education. Administrative Record ("AR") at 44, 67, 76. He alleges disability based on trigeminal neuralgia, hyperlipidemia, seizure disorder, and depression and anxiety. Id. P.E. alleges an onset day of June 28, 2013. Id. P.E. speaks only Spanish. Id. at 71.

A. Education and Employment

P.E. was born in Mezcala, Jalisco, Mexico. AR at 200. He left school in the fourth grade because of a learning disability. Id. at 530. He came to the United States in 1975 and moved back and forth between the United States and Mexico until 1999, when he and his family permanently settled in California. Id. P.E. and his wife M.E. have two children and two grandchildren. Id. He is pursuing citizenship through naturalization. Id. at 599.

P.E. worked as a janitor from 2004 until 2013, when his contract expired. Id. at 45, 240. According to P.E., he worked at that job for six to seven years. Id. He testified that after that, he was "unable to perform at other jobs he was offered." Id. at 528; see also id. at 534 ("unable to learn new jobs"). In 2000, he also worked in construction. Id. at 45.

B. Medical Background

1. Trigeminal Neuralgia

P.E. developed trigeminal neuralgia around 1998 and was treated with Tegretol (carbamazepine ). AR at 528. P.E. was seen by Dr. Jelalian, a neurologist, for his trigeminal neuralgia in 2007. Id. at 402. Dr. Jelalian prescribed carbamazepine, ordered lab tests after a week on that medication to establish a baseline, and referred P.E. for an MRI to determine whether there was any "structural lesion on the trigeminal nerve." Id. at 403.

In 2010, P.E. saw Dr. Efron to treat his right-side trigeminal neuralgia. Id. at 403. Dr. Efron described P.E.’s condition as "medically refractory." Id.

P.E. saw Dr. Carlos Enrique Meza, a primary care physician, for a routine physical on March 3, 2013. Id. at 323. Dr. Meza listed P.E.’s "active problem[s]" as trigeminal neuralgia and hyperlipidemia. Id. at 324. He recorded that P.E. complained of "R trigeminal pain" and opined that he "[c]ould use a tranquilizer." Id. Dr. Meza noted that P.E. had had trigeminal neuralgia for thirteen years. Id. at 337. Dr. Meza listed P.E.’s diagnoses as trigeminal neuralgia, depression, and anxiety. Id. at 322. Dr. Meza had several lab tests performed, all of which came back "normal" on March 4, 2013. Id. at 331.

At an appointment on March 24, 2013, Dr. Meza noted that P.E. was having "breakthrough pain" despite being on carbamazepine and that he was unable to go to work. Id. at 337. Dr. Meza started P.E. on nortriptyline for pain and continued P.E. on carbamazepine. Id. at 337-338. He also prescribed lorazepam for anxiety. Id. at 338. Dr. Meza ordered a lab test to determine P.E.’s carbamazepine level, which came back within normal range. Id. at 342.

On April 4, 2014, Dr. Meza's assistant called P.E. to inform him of the lab results and to ask whether the carbamazepine was controlling his pain; she spoke with P.E.’s wife, who told her that P.E.’s pain was "being well controlled." Id. at 343.

On April 26, 2013, P.E. began a series of acupuncture treatments to help manage his pain. Id. at 422–26. P.E. told the acupuncturist, Josef Inderkum, that his pain was "triggered at times with talking." Id. at 426. At his first visit, P.E. told Inderkum that he had struggled with trigeminal neuralgia for twelve years. Id. at 426. P.E. also told the acupuncturist that the pain did not disrupt his sleep but that it did impact his family. Id. P.E. underwent a total of six sessions of acupuncture. Id. at 422.

On April 28, 2014 2014, Dr. Meza put P.E. on state disability. Id. at 352. In May 2014, Dr. Meza extended P.E.’s state disability to December 28, 2014. Id. at 352-353.

On May 22, 2014, Dr. Meza noted that P.E. was having good results with medication. Id. at 347. Throughout 2014, Dr. Meza consistently noted that P.E. was "alert, well appearing, and in no distress." Id. at 414, 416, 417. On January 7, 2015, Dr. Meza wrote that P.E. was "well-appearing," "in no distress," and "[r]esponds to present therapy." Id. at 386.

At an office visit on May 22, 2015, Dr. Meza noted that P.E. was "[f]rustrated about his trigeminal neuralgia – states that it affects him psychologically, it makes him depressed[.] Upset and unable to carry on his ADL's." Id. at 411. He was oriented but "anxious." Id. Dr. Meza added "Recommend personal disability" to P.E.’s problem list. Id. at 412.

On May 28, 2015, M.E. called Deborah Williams at Kaiser. Id. at 410. She told Williams that P.E.’s pain was getting worse and that "she can't see him going back to work in his condition." Id. M.E. told Williams that P.E. was "trying to see if he could be deem[ed] permanently disabled." Id. Williams asked Dr. Jelalian for next steps; Dr. Jelalian replied that P.E. had already seen the neurosurgeon and that "he needs to talk with his PCP about disability." Id. Medical Assistant Gita Swaminathan called M.E., who told Swaminathan that the PCP was "not helping" and was "not writing enough to address disability." Id. Dr. Jelalian reiterated that she did not "do disability papers." Id. P.E.’s daughter called Williams back and clarified that P.E. was asking to be seen by Dr. Jelalian to determine if there were additional options for his pain, including the possibility of an MRI to see what was going on, as P.E.’s pain was getting worse. Id. Dr. Jelalian then ordered an MRI. Id.

On June 5, 2015, P.E. underwent an MRI of his brain. Id. at 403-404. The MRI revealed a stable lesion on his brain, which the radiologist thought was benign. Id. ; see also id. at 434–35 ("As this lesion appears closely associated with the tip of the basilar artery, a chronic ... aneurysm or other vascular lesion may be considered."), 465-467 (full results). P.E. underwent a CT test of his brain on June 11, 2015. Id. at 402–03. The test revealed a lesion, but the interpreting physician agreed that it was benign. Id. at 403.

Dr. Jelalian opined on June 12, 2015 that "CT scan results do not show a reason for his facial pain." Id. at 406; see also 434 (summary of results). Dr. Jelalian called P.E. and spoke to P.E. and his wife on June 12, 2015. Id. at 403. M.E. reported that P.E. was having trouble with his memory and was depressed. Id. P.E. told Dr. Jelalian that he was feeling a sharp, persistent, worsening pain which "[o]ccurs more when he is under stress." Id. Dr. Jelalian recommended that P.E. consider having surgery, but, according to M.E., he was not interested. Id.

Dr. Sharon Ghandi, a neurologist, saw P.E. on June 17, 2015. AR at 402. She referred P.E. to the Kaiser pain clinic. Id. She also found that P.E. would be a "[g]ood candidate for microvascular decompression or radiosurgery." Id. However, P.E. again declined surgery. Id. at 528.

P.E. met with Timothy Moore, M.F.T., on July 9, 2015. Id. at 518. Using his wife as a translator, P.E. told Moore that he "does not want to increase medication, does not want surgical options." Id.

P.E. saw Dr. Lanny Hsu, a physician with Kaiser's Chronic Pain Management Program, on July 14, 2015. Id. at 461. Dr. Hsu's notes describe P.E.’s pain as "sharp, shooting, [and like an] ice pick," occurring "intermittent[ly]" and exacerbated by "stress, anxiety, eating, talking." Id. at 512 (emphasis in original). Dr. Hsu told P.E. to stop taking Nortriptyline for a few nights to see how his pain level was affected, and also prescribed a ketamine pain relief gel to be used two to three times a day, as needed, for facial pain. Id. at 518.

In a telephone appointment on July 16, 2015, P.E. reported that he didn't feel much different when he was off Nortriptyline and Dr. Hsu told him to stay off it. Id. at 511. Dr. Hsu also instructed P.E. to reduce his morning dose of Tegretol (carbamazepine ) to see if this reduced its side effects. Id. at 511.

At a phone appointment on July 20, 2015, P.E. told Dr. Hsu that his pain was exacerbated by his mood, stress, and "sleep disruption." Id. at 510. Dr. Hsu noted that P.E. had an "[u]nclear response to dose reduction in Tegretol aside from possibly mildly worsened pain when he has flares." Id. P.E. had another telephone appointment with Dr. Hsu on July 23, 2015, this time with a telephonic translator instead of his wife. Id. at 508. He reported worsening pain along with additional side effects: "feels floppy, loose, does later confirm he feels less tired and less difficulty concentrating." Id. Dr. Hsu prescribed gabapentin to rotate with, and eventually replace, Tegretol and referred P.E. for opioid titration "if necessary." Id. at 508–509.

On August 4, 2015, Dr. Hsu noted that P.E. was still experiencing "fatigue, body aches, drowsiness," which P.E. attributed to his medication. Id. P.E. also mentioned that his pain...