United States District Court, D. Oregon
DANA L. MERRITT, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
OPINION & ORDER
D. CLARKE, UNITED STATES MAGISTRATE JUDGE.
Dana L. Merritt seeks judicial review under 42 U.S.C. §
405(g) of the final decision of the Commissioner of the
Social Security Administration denying her application for
Disability Insurance Benefits pursuant to the Social Security
Act. For the reasons below, the Commissioner's decision
is REVERSED and REMANDED for immediate payment of
was born in 1960 and was 51 years old on April 1, 2012, when
she alleges her disability began. Tr. 148. She worked for 23
years as a legal assistant and as a bookkeeper. Tr. 42, 68.
Plaintiff is married, and has one adult child, for whom she
is not a caretaker. Tr. 149. 185.
February, 2011, Plaintiff was examined by David Grunkemeier,
M.D., a gastroenterologist, for complicated irritable bowel
syndrome. Tr. 331. Plaintiff reported a history of 10 to 15
or possibly 20 bowel movements per day. She had a history of
anal fistula. surgically treated with a fistulotomy in 2007.
Dr. Grunkemeier was concerned that she had Crohn's
disease, possibly complicated by superimposed functional
bowel disorder, or choleretic diarrhea. Tr. 334. He ordered a
colonoscopy, which was suspicious for possible colonic
Crohn's disease. Tr. 336. On the same date, a CT of the
small bowel revealed mid-abdominal jejunal loop with much
bowel wall thickening, most consistent with inflammatory
bowel disease, and some thickening of the rectosigmoid area.
Tr. 330. That spring, 2011, Dr. Grunkemeier diagnosed
inflammatory bowel disease, Crohn's, most likely jejunal
ileitis. Tr. 327. He prescribed Entocort with a three-month
taper. Tr. 329.
months later, Ms. Merritt reported feeling quite fatigued and
having abdominal bloating. Tr. 261. She had nausea, was
thirsty all the time, and had a poor appetite. Id.
Stephanie Riccalarsen, M.D., the primary care physician,
thought that her fatigue may be due to Crohn's disease,
or possibly the medications she was taking to treat it. Tr.
July, 2011, Ms. Merritt was doing much better. Tr. 309.
Rifaximin gave her the best relief of her day-to-day
symptoms, "though duration of effect lasts only about
two weeks." Id. Dr. Grunkemeier's treatment
notes indicate that she was feeling "better than the
symptoms that she had when we first diagnosed her, but [she]
is still not in remission." Id. Dr. Grunkemeier
increased the Entocort dosage and prescribed a trial of
Rifaximin, one tablet every other day for prolonged effect,
and also prescribed mercaptopurine. Tr. 311.
September, 2011, Ms. Merritt was feeling better, but had
occasional bloating and abdominal cramping. Tr. 254. The
following week, Dr. Grunkemeier saw Ms. Merritt prior to an
endoscopy. Tr. 302. He advised that if she had active
disease, he would increase therapy, but he suspected that,
based on her degree of discomfort from bloating, she had
visceral hypersensitivity that was probably playing a
significant role in her symptoms. Id. She had not
seen the benefit very much from Xifaxan other than reduced
mucus; therefore, her perceived bloating due to visceral
hypersensitivity may be greater than the actual bloating that
June, 2012, Ms. Merritt continued to report gas and bloating,
a feeling of fullness, increased abdominal girth, and
multiple food intolerances. Tr. 289. She was not able to
tolerate desipramine. Id. Dr. Grunkemeier advised
that she had very minimal disease with a degree of visceral
sensitivity, as well as gas and bloating from dietary
indiscretions. Tr. 291. Her fecal calprotectin was slightly
elevated so he suspected that she had "a modicum of
active Crohn's disease." Id. He increased
the mercaptopurine and gave her Rifaximin samples for nine
days. Id. If this did not improve her symptoms, they
would consider Humira. Id.
November, 2012, Dr. Grunkemeier suspected that Ms. Merritt
had very mildly active small bowel disease, but a lot of
symptoms with it which significantly impaired her quality of
life. Tr. 280. In addition, Ms. Merritt was having joint pain
in her knees, hips and ankles which felt like flu-like
symptoms. Tr. 281. She was having one to two bowel movements
a day. Id. Dr. Grunkemeier wrote that her
Crohn's was "complicated." Tr. 282. Her
symptoms seemed more functional than related to significantly
active inflammatory bowel disease. Id. She may have
only minimally active inflammatory bowel disease, but
"nonetheless her quality of life was not good."
Id. Dr. Grunkemeier offered her several options and
Ms. Merritt chose to take an SSSRI to reduce some of her
functional symptoms; Dr. Grunkemeier prescribed Zoloft.
Id. In January. 2013, Ms. Merritt sought treatment
for chest pain and some shortness of breath. Tr. 235. She
also reported abdominal pain and bloating, cramps, nausea,
diarrhea, and constipation at times. Tr. 236. She had
generalized muscle aches and back pain. Id.
Plaintiff reported that she had been under increased stress
lately as her boss had retired and she no longer had a job.
Id. She was worried that with a new job she would
have to miss work because of Crohn's disease.
July, 2013, Dr. Grunkemeier wrote to Plaintiffs counsel that
Ms. Merritt has Crohn's disease, complicated in the past
by perianal fistula and small bowel ulcerations. Tr. 269. He
noted that she was intolerant, due to side effects, of
multiple medications used to treat the disease and continued
to have symptoms that are exacerbated nearly every day, which
significantly impair her quality of life. Id. He
wrote that Crohn's disease was a "lifelong condition
for which there is no cure." Id. Dr.
It is very likely that she will have a difficult time working
an eight hour day. Even a sedentary low stress job without
special accommodations, which may include frequent bathroom
breaks or absences from work, which may be more than two
days, due to exacerbation of flaring of her Crohn's
disease. Based on the definition of being able to sustain
full-time work, a clinical impression is based on Ms.
Merritt's long struggle with her Crohn's disease, I
do not feel she is going to be able to do so.
fall, Ms. Merritt continued to have symptoms of bloating,
abdominal discomfort, and occasional nausea. Tr. 406.
Rifaximin continued to be effective in mitigating some of
these symptoms. Id. Dr. Grunkemeier noted that they
were unable to use any tricyclic antidepressant or an SSRI
because of cognitive side effects. Id. He described
Plaintiffs condition as "complicated Crohn's
disease" with either significant advancement of her
small bowel disease and/or excessive visceral
hypersensitivity. Tr. 408. He recommended Humira if he could
get it approved. Id. He also recommended a capsule
endoscopy to determine that there was progressed disease in
the small bowel. Id.
spring of 2014, Ms. Merritt reported bloating, abdominal
pain, nausea, diarrhea and constipation. Tr. 395. She was
waking in the middle of the night with urges to have a bowel
movement. Id. Dr. Grunkemeier approved Xifaxin for
nine days. Tr. 395-396. The next month, Dr. Grunkemeier
approved immunomodulator monitoring for irritable bowel
disease. Tr. 388. In May, 2014, Ms. Merritt reported
abdominal pain and bulging to the right of her navel. Tr.
363. She had had pain off and on for a very long time, but
recently she was moving some things with her father, pushing
furniture around [and since then] the pain had not reduced.
Id. Lifting or eating seem to bring it on, and
worsened it. Id. She could feel little bulging, but
her abdomen was swollen from Crohn's and was harder to
feel. Id. She also had nausea. Id. Dr.
Riccalarsen diagnosed an umbilical hernia, and ordered an
ultrasound. Tr. 365. Steven Giss, M.D., diagnosed Ms. Merritt
with an umbilical hernia, and recommended surgery. Tr. 362.
Surgery was performed on May 28, 2014. Tr. 359.
alleges disability beginning April 1, 2012 due to Crohn's
disease. On August 14, 2014, the ALJ determined she was not
disabled. The Medicare Appeals Council denied review on
December 11, 2015, and the ALJ's decision became the
final decision of the Commissioner. Plaintiff timely filed
claimant is disabled if he or she is unable to "engage
in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which .
. . has lasted or can be expected to last for a continuous
period of not less than 12 months[.]" 42 U.S.C. §
423(d)(1)(A). "Social Security Regulations set out a
five-step sequential process for determining whether an
applicant is disabled within the meaning of the Social
Security Act." Keyser v. Comm 'r. Soc. Sec.
Admin., 648 F.3d 721, 724 (9th Cir. 2011). Each step is
potentially dispositive. 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4). The five-step sequential
process asks the following series of questions:
1. Is the claimant performing "substantial gainful
activity"? 20 C.F.R. §§ 404.1520(a)(4)(i);
416.920(a)(4)(i). This activity is work involving significant
mental or physical duties done or intended to be done for pay
or profit. 20 C.F.R. §§404.1510; 416.910. If the
claimant is performing such work, she is not disabled within
the meaning of the Act. 20 C.F.R. §§
404.1520(a)(4)(i); 416.920(a)(4)(i). If the claimant is not
performing substantial gainful activity, the analysis
proceeds to step two.
2. Is the claimant's impairment "severe" under
the Commissioner's regulations? 20 C.F.R §§
404.1520(a)(4)(ii); 416.920(a)(4)(ii). Unless expected to
result in death, an impairment is "severe" if it
significantly limits the claimant's physical or mental
ability to do basic work activities. 20 C.F.R. §§
404.1521(a); 416.921(a). This impairment must have lasted or
must be expected to last for a continuous period of at least
12 months. 20 C.F.R. §§404.1509; 416.909. If the
claimant does not have a severe impairment, the analysis
ends. 20 C.F.R. §§ 404.1520(a)(4)(H);
416.920(a)(4)(h). If the claimant has a severe impairment,
the analysis proceeds to step three.
3. Does the claimant's severe impairment "meet or
equal" one or more of the impairments listed in 20
C.F.R. Part 404, Subpart P, Appendix 1? If so, then the
claimant is disabled. 20 C.F.R. §§
404.1520(a)(4)(iii); 416.920(a)(4)(iii). If the impairment
does not meet or equal one or more of the listed impairments,
the analysis proceeds to the "residual functional
capacity" ("RFC") assessment.
a. The ALJ must evaluate medical and other relevant evidence
to assess and determine the claimant's RFC. This is an
assessment of work-related activities that the claimant may
still perform on a regular and continuing basis, despite any
limitations imposed by his or her impairments. 20 C.F.R.
§§ 404.1520(e); 404.1545(b)-(c); 416.920(e);
416.945(b)-(c). After the ALJ determines the claimant's
RFC, the analysis proceeds to step four.
4. Can the claimant perform his or her "past relevant
work" with this RFC assessment? If so, then the claimant
is not disabled. 20 C.F.R. §§404.1520(a)(4)(iv);
416.920(a)(4)(iv). If the claimant cannot perform his or her