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Judi W. v. Saul

United States District Court, D. Oregon

July 18, 2019

JUDI W.,[1] Plaintiff,
ANDREW M. SAUL, Commissioner of Social Security, Defendant.



         Judi W. (“Plaintiff”) brings this appeal challenging the Commissioner of the Social Security Administration's (“Commissioner”) denial of her application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401-34. The Court has jurisdiction to hear Plaintiff's appeal pursuant to 42 U.S.C. § 405(g). For the reasons explained below, the Court reverses the Commissioner's decision and remands for further administrative proceedings.


         Plaintiff was born in December 1958, making her fifty years old on December 9, 2008, the amended alleged disability onset date. (Tr. 10, 18.) Plaintiff has a high school education and past work experience as a customer service supervisor. (Tr. 18, 136.) In her DIB application, Plaintiff alleges disability due to chronic obstructive pulmonary disease (“COPD”), kidney disease, arthritis, osteoporosis, migraines, hypothyroidism, and left lung tumors.[2] (Tr. 42, 49, 126.)

         On April 24, 2007, over a year and a half before the amended alleged disability onset date, Plaintiff underwent a “standardized noncontrast renal colic” computed tomography (“CT”) scan because kidney stones were revealed during Plaintiff's last examination on January 10, 2006, and because Plaintiff reported “a history of renal colic on the right side for the last 10 days.” (Tr. 785-86.) Plaintiff's CT scan revealed, among other things: (1) “[n]o definite evidence of renal obstruction or dilation of either renal collecting system”; (2) “[n]o change in the bilateral intrarenal calculi”; and (3) “[p]ossible changes of medullary sponge kidney [disease].” (Tr. 785-86; see also Tr. 781, stating that the CT scan revealed “[s]cattered small calcifications within the kidneys [that were] stable versus [the] slightly more conspicuous [calcifications] in the prior CT” scan).

         On April 27, 2007, Plaintiff primary care physician, David Hindahl, M.D. (“Dr. Hindahl”), noted that Plaintiff reported “feeling better though [her] side [was] still achy, ” and that Plaintiff “[h]ad a stone, almost certainly, but [she] seem[ed] to have passed it.” (Tr. 416.) The next day, Plaintiff complained of continued flank pain, nausea, and vomiting. (Tr. 416.)

         On May 29, 2007, Plaintiff visited Judy Perry-Rose, M.D. (“Dr. Perry-Rose”) and reported that she was “the primary caretaker during the day” for her seven-year old granddaughter who suffers from cancer, she lives with her husband, three daughters, and three grandchildren, and her anxiety medication (lorazepam) was producing “diminishing benefits.” (Tr. 415.)

         On August 26, 2007, Plaintiff complained of abdominal pain and an x-ray revealed “[l]ittle interval change, ” normal gas pattern, and no evidence of a suspected obstruction. (Tr. 784.) The attending physician, John Ross, D.O. (“Dr. Ross”), noted that Plaintiff had a “known history of kidney stones and a medullary sponge kidney, ” Plaintiff's “final diagnosis” was nephrolithiasis, and Plaintiff was discharged with oxycodone and Phenergan prescriptions.[3](Tr. 412-13.)

         On June 23, 2008, an x-ray of Plaintiff's abdomen revealed “several tiny calyceal calculi within the left kidney, but [there was] nothing noted along the course of the left ureter.” (Tr. 780.) Plaintiff's urologist, Richard Steinberg, M.D. (“Dr. Steinberg”), stated that he recommended that Plaintiff “consider doing [a] left ureteroscopy to clean out her kidneys, ” but Plaintiff had “an ill [grand]child that she need[ed] to take care of[.]” (Tr. 403.) Dr. Steinberg added that a left ureteroscopy would be scheduled once Plaintiff's “child[care] situation [was] under control, ” and that Plaintiff would continue taking oxycodone, Compazine, and Flomax. (Tr. 403.)

         On July 29, 2008, a CT scan revealed “[b]ilateral nephrolithiasis . . . without evidence for hydroureteronephrosis similar to what was documented” on Plaintiff's prior CT scan. (Tr. 778-79.) One month later, Dr. Steinberg performed a “left ureterolithotomy with stent placement.” (Tr. 776.)

         On November 3, 2008, Plaintiff reported that she was “passing kidney stones again” and that she was suffering from severe lower back pain due to “her kidney stones and sciatica.” (Tr. 394.) Dr. Steinberg prescribed Vicodin to address Plaintiff's kidney-related “discomfort.” (Tr. 394.)

         On November 25, 2008, about two weeks before the amended alleged disability onset date, Plaintiff reported that she was “not completely pain free, ” but she was doing “much better.” (Tr. 393.) Dr. Hindahl noted that Plaintiff went “through 60 . . . Oxycodone[] already since” November 13, 2008, because she was “passing a lot of stones and having quite a bit of pain.” (Tr. 393.) Dr. Hindahl added that Plaintiff was “to try to start cutting back on Oxycodone use, ” and that Plaintiff “will always need to have some [type of] medicine for breakthrough pain.” (Tr. 393.)

         In a treatment note dated December 9, 2008, Dr. Hindahl noted that Plaintiff reported that her pain control was “better” and that she “only used half of her breakthrough” medication. (Tr. 392.)

         On February 4, 2009, Plaintiff reported that she “continue[d] to have nephrolithiasis with production of kidney stones that are painful, ” and that her kidney stone-related pain was “part of the reason she had been sleeping no more than about 2 hours a night for the recent 2 months.” (Tr. 391.)

         In a treatment note dated January 29, 2010, Dr. Hindahl noted that Plaintiff violated her opiate therapy plan:

I need [Plaintiff] to explain why there was Methadone in her urine. It is not prescribed by us. This represents a major violation of her opiate therapy plan and puts future access to narcotics in jeopardy. It is extremely dangerous to combine methadone and long acting Morphine. This is a way that people accidentally kill themselves with these types of drugs. If I cannot trust that she is avoiding other medicines that she gets on the street or elsewhere, I cannot continue to prescribe such powerful narcotics for her.

(Tr. 378.) Plaintiff reported that “morphine was not working so a friend gave her methadone.” (Tr. 378.)

         On February 2, 2010, Dr. Hindahl noted that Plaintiff was “having terrible pain from her multiple kidney stones, ” Plaintiff took methadone because morphine was not working effectively and she could not go to the emergency room since “her disabled granddaughter was having seizures, ” Plaintiff was “mortified” when he told her that she could have died from mixing methadone and morphine, Plaintiff's pain is “real and unremitting, ” and Plaintiff has “been told several times by urology that they can't really help her due [to] . . . all the stones she makes.” (Tr. 377.) Dr. Hindahl subsequently observed that he “actually trust[s] [Plaintiff] a great deal” and believed her “story of being in a total, screaming panic about the [severity of her] pain.” (Tr. 376.)

         On May 31, 2010, Plaintiff underwent a renal ultrasound based on complaints of bilateral flank pain and hematuria. (Tr. 763.) Plaintiff's ultrasound revealed: (1) “[n]o hydronephrosis”; (2) an unremarkable bladder; and (3) a “[s]mall bilateral . . . nonobstructing renal calculi.” (Tr. 763.)

         On June 3, 2010, Plaintiff's imaging was unremarkable and showed “[n]o sign of renal calculi.” (Tr. 761.) Dr. Steinberg stated that it was unlikely Plaintiff had “any active stones.” (Tr. 369.)

         On May 2, 2011, Plaintiff visited Kelly Cushing, D.O. (“Dr. Cushing”), and reported that she fell “during a pain episode while passing a kidney stone.” (Tr. 357.) Dr. Cushing noted that Plaintiff's recent urine drug screen was positive for certain unprescribed medications (oxymorphone and methadone) but was not positive for morphine even though Plaintiff is prescribed “150 mg daily.” (Tr. 357.) Dr. Cushing noted that Plaintiff had “no answer” when asked “why morphine was not in her urine.” (Tr. 357.) Dr. Cushing also addressed opioid dependence:

[It is] [v]ery concerning that she is taking multiple opiates, but NOT taking [the] morphine that is prescribed. She is certainly at risk for complications from overdose. I declined injectable opiate narcotics today. Patient advised she may use oxycodone she should have at home from her [opioid treatment program]. No. new opiate [prescriptions] from me. I suspect she has addiction issues, but [she is] not open to this discussion. [She] [a]grees to follow up with [her primary care provider] regarding opiate use. I ordered a [urine drug screen] today [but] . . . [s]he did not comply. No. [urine drug screen] resulted.

(Tr. 358.)

         On August 8, 2011, Plaintiff presented for a follow-up visit with Dr. Hindahl regarding her “opiate therapy plan and chronic pain management.” (Tr. 354.) According to Dr. Hindahl, Plaintiff indicated that she “would like to have better pain control and perceive[d] a need for more Oxycodone.” (Tr. 354.) Dr. Hindahl elected to increase Plaintiff's morphine dosage. (Tr. 354.)

         In a treatment note dated September 19, 2011, Dr. Hindahl noted that Plaintiff had “been feeling well and feel[ing] like things are going better in general, ” and that Plaintiff “still passes [kidney] stones about twice a month and there is nothing much [that can] be done about that.” (Tr. 351.)

         In October 2011, Plaintiff was “found” around “5 a.m. at a Kaiser pharmacy, ” admitted to the hospital due to a “possible overdose, ” and administered, inter alia, “Narcan IV.”[4] (Tr. 307, 312, 318.) Plaintiff's morphine dosage was subsequently reduced by fifty percent. (See Tr. 347, stating that Plaintiff's morphine was “decreased from 60 mg three times daily to 30 mg three times daily”).

         On July 18, 2012, images of Plaintiff's abdomen and pelvis revealed a “[p]ossible 2mm upper pole left renal stone” and “[n]o convincing evidence for urinary calculi elsewhere.” (Tr. 690.) Later that year, Plaintiff's imaging revealed a “nonobstructing left renal calculus.” (Tr. 680.)

         On June 14, 2013, an x-ray of Plaintiff's kidneys revealed a “[s]table . . . presumed stone in the superior pole of the left kidney” and “[n]o other convincing urinary calculi elsewhere.” (Tr. 657.)

         On July 17, 2014, Plaintiff's ultrasound revealed: (1) “[b]ilateral nonobstructing renal calculi”; (2) “[n]o hydronephrosis”; and (3) an ...

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