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Ross v. Commissioner of Social Security Administration

United States District Court, D. Oregon, Portland Division

January 2, 2018



          Ann Aiken United States District Judge.

         Plaintiff 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.


         In 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.


         The 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).


         The 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).

         The 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. §§416.920(a)(4)(iii), (d).

         The ALJ found plaintiff retained the residual functional capacity ("RFC") to

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 benefits.


         I. Plaintiff's Symptom Statements

         As a 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.

         The 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.

         When a 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).[1]

         Plaintiff 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.

         The ALJ 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.

         A. Inconsistent Statements

         The ALJ 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.

         The ALJ 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.

         B. Exaggerated Statements and Lack of Support in Medical Record

         Although 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.

         The ALJ 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.

         The ALJ 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.

         The ALJ 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.

         The ALJ 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 ...

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