United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
Aiken United States District Judge.
Carline Kay Ross brings this action pursuant to the Social
Security Act ("Act"), 42 U.S.C. § 405(g), to
obtain judicial review of a final decision of the
Commissioner of Social Security ("Commissioner"),
The Commissioner denied plaintiffs applications for
Disability Insurance Benefits ("DIB") and
Supplemental Security Income ("SSI"). For the
reasons set forth below, the Commissioner's decision is
reversed and remanded for an immediate award of benefits.
April 2013, plaintiff applied for DIB and SSI. Her
applications were denied initially and upon reconsideration.
On July 30, 2014, plaintiff appeared at a hearing before an
administrative law judge ("ALJ"). At the hearing,
plaintiff testified and was represented by an attorney. A
vocational expert ("VE") also testified. The ALJ
found plaintiff not disabled in a written decision issued on
October 16, 2015. After the Appeals Council denied review,
plaintiff filed a complaint in this Court.
district court must affirm the Commissioner's decision if
it is based upon proper legal standards and the findings are
supported by substantial evidence in the record. 42 U.S.C.
§ 405(g); Berry v. Astrue, 622 F.3d 1228, 1231
(9th Cir. 2010). "Substantial evidence is more than a
mere scintilla but less than a preponderance; it is such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Gutierrez v.
Comm'r of Soc. Sec, 740 F.3d 519, 522 (9th Cir.
2014) (citation and quotation marks omitted). The court must
weigh "both the evidence that supports and the evidence
that detracts from the ALJ's conclusion." Mayes
v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001), If the
evidence is subject to more than one interpretation but the
Commissioner's decision is rational, the Commissioner
must be affirmed, because "the court may not substitute
its judgment for that of the Commissioner." Edhmd v.
Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).
initial burden of proof rests upon the plaintiff to establish
disability. Howard v. Heckler, 782 F.2d 1484, 1486
(9th Cir. 1986). To meet this burden, the plaintiff must
demonstrate an "inability to engage in any substantial
gainful activity by reason of any medically determinable
physical or mental impairment which can be expected... to
last for a continuous period of not less than 12
months[.]" 42 U.S.C. § 423(d)(1)(A).
Commissioner has established a five-step sequential process
for determining whether a person is disabled. Bowen v.
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §
404.1520(a)(4); id. § 416.920(a)(4). At step
one, the ALJ found plaintiff had not engaged in
"substantial gainful activity" since her alleged
onset date of September 1, 2005. Tr. 21; 20 C.F.R.
§§ 404.1520(a)(4)(i), (b); id.
§§ 416.92O(a)(4)(i), (b). At step two, the ALJ
found that through the date last insured, plaintiff had the
following severe impairments: "cervical spine
degenerative disc disease; history of small bowel
obstruction, status post laparoscopic ileostomy and colostomy
and subsequent small bowel resection; insulin dependent
diabetes mellitus; major depressive disorder; posttraumatic
stress disorder (PTSD); borderline personality disorder; and
somatoform disorder." Tr. 21; 20 C.F.R. §§
404.1520(a)(4)(ii), (c); id. §§
4l6.92O(a)(4)(ii), (c). The ALJ additionally found that since
plaintiffs date last insured she had the following severe
impairments "[status post] left C7-T1 foraminotomy;
cirrhosis; and status post left knee arthroscopy." Tr.
21-22. At step three, the ALJ determined plaintiffs
impairments, whether considered singly or in combination, did
not meet or equal "one of the listed impairments"
that the Commissioner acknowledges are so severe as to
preclude substantial gainful activity. Tr. 22; 20 C.F.R.
§§ 404.1520(a)(4)(iii), (d); id.
found plaintiff retained the residual functional capacity
perform a reduced range of light work. She can lift and carry
20 pounds occasionally and 10 pounds frequently. She can sit,
stand, and walk for 6 hours each in an 8-hour workday. She
can frequently climb ramps and stairs but can only
occasionally climb ladders, ropes, or scaffolds. She can
frequently balance, kneel, and crouch and can occasionally
stoop and crawl. She must avoid even moderate exposure to
workplace hazards. She can understand, remember, and carry
out simple, repetitive, routine tasks with occasional contact
with the general public.
Tr. 24. At step four, the ALJ concluded plaintiff could not
perform any of her past relevant work. 20 C.F.R. §§
404.1520(a)(4)(iv), (f); id §§
4l6.92O(a)(4)(iv), (f). At step five, however, the ALJ found
that plaintiff could perform work existing in the national
economy; specifically, plaintiff could work as a garment
sorter, merchandise marker, and laundry subsorter. 20 C.F.R.
§§ 404.1520(a)(4)(v), (g); id.
§§ 4l6.92O(a)(4)(v), (g). Accordingly, the ALJ
found plaintiff not disabled and denied her applications for
Plaintiff's Symptom Statements
preliminary matter, the Commissioner argues that plaintiff
waived this issue because she failed to preserve the issue on
appeal, "as it was not raised whatsoever in plaintiffs
counsel's brief to the Appeals Council." Def.'s
Brief at 6 (citing Meanel v. Apfel, 172 F.3d 1111,
1115 (9th Cir. 1999)). In Meanel, the claimant
failed to introduce at the administrative hearing statistical
evidence regarding the number of existing jobs.
Meanel, 172 F.3d at 1115. The court in
Meanel held that "at least when claimants are
represented by counsel, they must raise all issues and
evidence at their administrative hearings in order to
preserve them on appeal." Id. Here, however,
the issue now raised by plaintiff is a challenge to the
ALJ's credibility determination. Because the ALJ does not
make the credibility determination until she issues a written
decision, this is an issue that by its very nature cannot be
raised at the administrative hearing. Therefore,
Meanel is inapposite.
Commissioner also cites Lamear v. Berryhill. The
court in Lamear held that an issue was not waived
even though it was not raised at the hearing, because it was
raised to the Appeals Council. Lamear v. Berryhill,
865 F.3d 1201, 1206 (9th Cir. 2017). Lamear stands
for the proposition that the failure to raise an issue at the
hearing can be remedied by raising it to the Appeals Council.
Id. Here, plaintiffs challenge to the ALJ's
determination could not be raised at the hearing, therefore
there was no need to remedy such failure by raising the issue
to the Appeals Council. The Commissioner fails to articulate
any argument regarding how Lamear applies to the
present case. Although plaintiffs failure to raise the issue
to the Appeals Council may not be preferable, in the absence
of Ninth Circuit precedent, I will not take the drastic step
of foreclosing judicial review by deeming plaintiffs
arguments to be waived.
claimant's medically documented impairments reasonably
could be expected to produce some degree of the symptoms
complained of, and the record contains no affirmative
evidence of malingering, "the ALJ can reject the
claimant's testimony about the severity of . . . symptoms
only by offering specific, clear and convincing reasons for
doing so." Smolen v. Chater, 80 F.3d 1273, 1281
(9th Cir. 1996). A general assertion that the claimant is not
credible is insufficient; the ALJ must "state which . .
. testimony is not credible and what evidence suggests the
complaints are not credible." Dodrill v.
Shalala, 12 F.3d 915, 918 (9th Cir. 1993). If the
"ALJ's credibility finding is supported by
substantial evidence in the record, [the court] may not
engage in second-guessing." Thomas v. Barnhart,
278 F.3d 947, 959 (9th Cir. 2002).
testified that she only has a seventh grade education and has
not completed her GED. She sometimes lives in her car because
her house has been foreclosed on, and even when she lives in
her house it does not have working plumbing or electricity.
Plaintiff explained that she used a cane because her physical
therapist recommended that she use a walker or a cane.
Plaintiff testified that she has had a great number of
surgeries on her stomach, including a surgery in which a
section of her small bowel was removed. Plaintiff also
reported that she had been, and still was, suffering from a
fistula, which manifested itself as "an open hole in
[her] stomach" that "drain[ed] all the time."
Tr. 56. At the time of the hearing plaintiff was scheduled to
have her gall bladder removed. Plaintiff also explained that
she is allergic to almost all medications. Plaintiff often
becomes emotional due to her impairments and she has tried to
take her own life "many, many times." Tr. 62.
found that plaintiffs "statements concerning the
intensity persistence and limiting effects of [her] symptoms
are not entirely credible[.]" Tr. 26. The ALJ did not
find, nor does defendant argue, that plaintiff malingered.
Given these facts, the ALJ was required to support the
rejection of plaintiffs symptom testimony with specific,
clear and convincing reasons. The ALJ gave seven reasons for
discrediting plaintiffs claimed limitations: (A) plaintiff
provided inconsistent statements; (B) plaintiff exaggerated
her symptoms and her claimed impairments were not supported
by the record; (C) plaintiffs conservative treatment
undermined her subjective symptom testimony; (D) plaintiffs
symptoms were effectively treated; (E) plaintiff used a cane
which was not prescribed by any doctor; (F) plaintiffs memory
was fallible; and (G) plaintiffs activities of daily living
supported a finding that she was capable of greater work
activities than alleged.
found that plaintiffs subjective complaints were
"inconsistent with other evidence, including the
clinical and objective findings of the record." Tr. 26.
Specifically, the ALJ found that although plaintiff said she
quit working in September 2005, due to a motor vehicle
accident, the medical evidence indicated that the
claimant's motor vehicle accident did not occur until
October 2005. The ALJ explained that "[t]he fact [that
plaintiff] provided inaccurate information on matters so
integral to determining disability suggest that much of what
she alleged may be similarly unreliable." Tr. 27. This
is not a clear and convincing reason to reject plaintiffs
testimony because it fails to identify which symptom
testimony is not credible. Dodrill, 12 F.3d at 918.
also asserted that the motor vehicle accident was minor, as
the airbag did not deploy, plaintiff was not taken to the
hospital, and plaintiff was only diagnosed with a strain.
Again, this is not a clear and convincing reason because the
ALJ failed to specify which symptom testimony is not
credible. Dodrill, 12 F.3d at 918. Furthermore, the
medical records indicate that plaintiffs car accident was not
minor. Dr. Jones noted that plaintiff had "sustained an
intense front sided impact " and that plaintiff had a
"dramatic bruise under the seatbelt from the left
shoulder and across her chest." Tr. 440. Moreover,
plaintiff "immediately had pain in her shoulder, neck,
and back." Id. Four months after the car
accident Dr. Keiper reported that plaintiff had been
experiencing pain in her neck, shoulder, and arm since the
accident, as well as pain in the lower back radiating into
her left leg. At this point plaintiff was unable to rotate
her shoulder without "severe pain." Tr, 362. Dr.
Shapiro observed that plaintiff "scream[ed] in
pain" when testing the rotation of her left shoulder and
ultimately determined that plaintiffs shoulder pain was a
"direct consequence of the [motor vehicle
accident]." Tr. 430, 441. Dr. Kosek also concluded that
plaintiffs "neuropathic arm and leg pain [were] a direct
result of her [motor vehicle accident], and her need for
continued treatment [was] relat[ed] to that accident."
Tr. 703. Moreover, the ALJ incorrectly found that plaintiff
was only diagnosed with a strain. Although plaintiff was
diagnosed with a cervical strain, a left shoulder strain, and
a low back strain, Dr. Kosek also diagnosed plaintiff with
complex regional pain syndrome ("CRPS").
Accordingly, plaintiffs alleged inconsistent statements are
not a clear and convincing reason to reject plaintiffs
subjective symptom testimony.
Exaggerated Statements and Lack of Support in Medical
the ALJ acknowledged plaintiffs history of gastrointestinal
issues predating the surgical procedures performed in 1997,
she found that after those procedures, plaintiffs treating
provider "reported significant improvement and the
records showed only one recorded instance of abdominal pain
between 1997 and 2005." Tr. 28. Plaintiff argues that
the ALJ's findings with regard to her medical condition
during the period from 1997 to 2005 were made improperly
because those medical records were not part of the
administrative record. Albalos v. Sullivan, 907 F.2d
871, 874 (9th Cir. 1990) ("[I]t is erroneous to rely on
items not in the record.") The ALJ did not rely entirely
on items outside the record, because she refers to a brief
summary of plaintiffs past medical history produced in 2005
that discusses several of plaintiffs hospitalizations and
surgeries between 1997 and 2005. Nevertheless, it was neither
fair nor reasonable to rely on the absence of
contemporaneous reports of abdominal pain between 1997 and
2005 considering that plaintiffs medical records from that
time period were not included in the administrative record.
An extensive review reveals that almost the entirety of the
medical record covers the time period from 2005 to 2015.
Although there are a few records from 2003 through 2004,
there are only secondhand references to the time period of
1997 to 2002, Therefore, it was improper for the ALJ to
reject plaintiffs symptom testimony based on a lack of
medical evidence regarding a time period that was scarcely
discussed in the medical record.
found that, in September 2005, plaintiff reported that since
the 1997 surgery she had experienced large volumes of
diarrhea up to 30 times per day; however, there is no basis
in the record that such symptoms were contemporaneously
reported. Again, the ALJ relies on the absence of medical
evidence with regard to a time period that was only minimally
discussed in the medical record. Furthermore, plaintiff did
make contemporaneous reports of diarrhea, specifically, in
August 2005, plaintiff reported 30-45 stools per day. The ALJ
also relies on the fact that a few months later, plaintiff
reported that her bladder and bowel functions were working
normally. Although plaintiff did report that her bowel
function was normal in February 2006, the record
overwhelmingly demonstrates that between 2005 and 2015
plaintiff consistently suffered from diarrhea, abdominal
pain, and incontinence. The ALJ may not merely cherry-pick
isolated inconsistencies with the objective medical record to
discount a plaintiffs entire symptom testimony. Garrison
v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014) (citing
Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir.
2001)). Therefore, plaintiffs normal bowel function at one,
appointment in 2006 is not a clear and convincing reason for
rejecting plaintiffs subjective symptom testimony.
found that it was paradoxical that plaintiff did not lose
weight despite her alleged frequent diarrhea. However, during
a sixteen-month period from late 2010 to early 2012,
plaintiff lost over 30 pounds. She subsequently lost nearly
20 pounds in a six-month period in 2013. Furthermore, in
2014, plaintiff was underweight to the extent that her
treatment providers determined that she needed to gain weight
before a necessary surgery could be performed.
additionally noted that despite plaintiffs repeated claims of
urinary and bowel incontinence, "she was never diagnosed
with incontinence and such allegations are unsupported by the
medical record, including [plaintiffs] reports of normal
bowel function." Tr. 29. However, the medical record
demonstrates that plaintiff was regularly suffering from
incontinence. Moreover, Dr. Jones repeatedly assessed that
plaintiff was suffering from chronic fecal incontinence.
found that plaintiffs report of a fistula in December 2013
was unsupported by the medical record, and that in fact
plaintiff merely had a stitch abscess. Contrary to the
ALJ's finding, the record fully supports plaintiffs
testimony regarding the fistula. Plaintiff was diagnosed with
a fistula on multiple occasions, including in December 2013,
when an ultrasound revealed a three-centimeter fistula.
Furthermore, the fistula became a chronic problem for
plaintiff. Plaintiff had to visit the emergency room several
times due to ongoing bleeding from the fistula and she