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Merritt v. Commissioner of Social Security

United States District Court, D. Oregon

October 12, 2017

DANA L. MERRITT, Plaintiff,

          OPINION & ORDER


         Plaintiff 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 benefits.[1]


         Plaintiff 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.

         In 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.

         Two 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. 258.

         In 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.

         In 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 occurs. Id.

         In 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.

         In 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. Id.

         In 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. Grunkemeier wrote:

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.


         That 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.

         In the 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.

         Plaintiff 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 this appeal.


         A 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. ยงยง404.1520(a)(4)(iv); 416.920(a)(4)(iv). If the claimant cannot perform his or her ...

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