United States District Court, D. Oregon, Medford Division
OPINION AND ORDER
Yim You, United States Magistrate Judge.
A. (“plaintiff”) seeks judicial review of the
final decision by the Commissioner of Social Security
(“Commissioner”) denying his application for
Title II Disability Insurance Benefits (“DIB”)
and Social Security Income (“SSI”) under the
Social Security Act (“Act”). This court has
jurisdiction to review the Commissioner's decision
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
Because the Commissioner's decision is not supported by
substantial evidence, it is REVERSED and REMANDED for the
immediate calculation and payment of benefits.
August 1970, plaintiff was 39 years old on the alleged onset
date. Tr. 134. He has a high school education and past work
experience as a produce clerk and a cart attendant. Tr. 27.
has been diagnosed with ulcerative colitis, major depressive
disorder, anxiety disorder, autism spectrum disorder,
hoarding disorder, pyoderma gangrenosum, personality
disorder, and dysthymic disorder. Tr. 348, 413, 555, 561,
641, 643, 646. Throughout the relevant period,
plaintiff's ulcerative colitis caused him to have six
bowel movements per day. Tr. 418, 428, 431, 434, 437, 489,
493, 499, 502, 599, 602. At times, plaintiff was having as
many as 12 bowel movements per day. Tr. 413, 441, 574, 577.
Even when plaintiff was passing six stools per day, he
reported making twelve trips to the bathroom “because
he [was] afraid that he [would] pass stool with
flatus.” Tr. 484. Plaintiff testified that he uses the
bathroom a lot to ensure that he does not have an accident.
Tr. 72-73, 418, 428, 542. Nevertheless, plaintiff still has
accidents and has been wearing incontinence underwear for
years. Tr. 282, 338, 353.
has struggled to independently care for himself and his home.
Plaintiff's treating providers noted that plaintiff had
problems with hygiene, and on multiple occasions he presented
as malodorous and/or with soiled clothing. Tr. 442, 641, 667,
693-94, 700. Plaintiff never sweeps, mops, or vacuums, and he
washes his laundry in a garbage can, despite the fact that
his stepmother allows him to use the washing machine in her
house across the street. Tr. 338, 561. Plaintiff's family
had to stop garbage services to his house because he was
using the garbage can to wash his clothes. Tr. 338.
impulsively buys large amounts of any food that he sees on
sale, even things that he will never eat and does not have
the space for. Tr. 338, 660, 667. His family had to
confiscate his electronic benefit transfer (EBT) card because
“he was buying unnecessary items and they were rotting
all over his yard and house.” Tr. 338. Plaintiff also
collects items out of dumpsters and stores them in his house.
Tr. 339. Plaintiff's house can be smelled from the
street, and electricians and plumbers have refused to enter
due to the smell. Tr. 338, 667.
has no friends. Tr. 341, 561, 682. He has deficits in social
skills, nonverbal communication, and developing and
understanding relationships, as well as difficulty
interacting with others. Tr. 339, 341, 349, 560-62, 682. His
family reported that if a woman pays any attention to him
“he takes it way out of context and will stalk them and
follow them around.” Tr. 339, 341. Plaintiff also
exhibited an “inflexible adherence to routines, ”
and he and his family reported that he could not handle
changes to his routine “at all.” Tr. 282, 299,
filed applications for DIB and SSI on November 13, 2014,
alleging disability beginning September 20, 2009. Tr. 13. His
application was denied initially and upon reconsideration.
Id. On April 21, 2017, a hearing was held before an
Administrative Law Judge (“ALJ”), wherein
plaintiff was represented by counsel and testified, as did a
vocational expert (“VE”). Tr. 38-88. At the
hearing, plaintiff amended his alleged onset date to May 12,
2010. Tr. 13. On June 22, 2017, the ALJ issued a decision
finding plaintiff not disabled within the meaning of the Act.
Tr. 13-29. After the Appeals Council denied his request for
review, plaintiff filed a complaint in this court. Tr. 1-6.
The ALJ's decision is therefore the Commissioner's
final decision subject to review by this court. 20 C.F.R.
reviewing court must affirm the Commissioner's decision
if it is based on proper legal standards and the findings are
supported by substantial evidence in the record. 42 U.S.C.
§ 405(g); Lewis v. Astrue, 498 F.3d 909, 911
(9th Cir. 2007). This court must weigh the evidence that
supports and detracts from the ALJ's conclusion and
“‘may not affirm simply by isolating a specific
quantum of supporting evidence.'” Garrison v.
Colvin, 759 F.3d 995, 1009-10 (9th Cir. 2014) (quoting
Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th
Cir. 2007)). The reviewing court may not substitute its
judgment for that of the Commissioner when the evidence can
reasonably support either affirming or reversing the
decision. Parra v. Astrue, 481 F.3d 742, 746 (9th
Cir. 2007). Instead, where the evidence is susceptible to
more than one rational interpretation, the Commissioner's
decision must be upheld if it is “supported by
inferences reasonably drawn from the record.”
Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir.
2008) (citation omitted); see also
Lingenfelter, 504 F.3d at 1035.
ANALYSIS AND ALJ FINDINGS
is the “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or
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). The ALJ engages in a five-step sequential
inquiry to determine whether a claimant is disabled within
the meaning of the Act. This sequential analysis is set forth
in the Social Security regulations, 20 C.F.R. §§
404.1520, 416.920, in Ninth Circuit case law, Lounsburry
v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006)
(discussing Tackett v. Apfel, 180 F.3d 1094, 1098-99
(9th Cir. 1999)), and in the ALJ's decision in this case,
one, the ALJ found that plaintiff had not engaged in
substantial gainful activity after the alleged onset date.
two, the ALJ found that plaintiff has the following severe
impairments: ulcerative colitis, major depressive disorder,
anxiety disorder, autism spectrum disorder, and hoarding
three, the ALJ found plaintiff did not have an impairment or
combination of impairments that met or medically equaled a
listed impairment. Tr. 16. The ALJ next assessed
plaintiff's residual functional capacity
(“RFC”) and determined that he could perform a
full range of work at all exertional levels with the
following limitations: he could occasionally climb ladders
and scaffolds, he requires ready access to a restroom and
three unscheduled five-minute restroom breaks (in addition to
normal breaks), he is limited to simple, routine tasks
consistent with a reasoning level of two and unskilled work,
and he is limited to occasional interaction with the public.
four, the ALJ found plaintiff could not perform his past
relevant work as a produce clerk or cart attendant. Tr. 27.
five the ALJ determined that plaintiff could perform jobs
that exist in significant numbers in the national economy,
including janitor, auto detailer, and laundry folder. Tr.
argues that the ALJ: (1) improperly discounted his subjective
symptom testimony; (2) erroneously assessed the medical
opinion of examining physician Dr. Cole; (3) improperly
rejected the lay witness testimony of his stepmother,
stepbrother, and Charlotte S.; (4) erroneously performed the
Listings analysis; and (5) improperly crafted the RFC to
include limitations that would be considered accommodations
under the ADA.
Subjective Symptom Testimony
claimant has medically documented impairments that could
reasonably 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) (citation omitted). 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). The reasons proffered must be
“sufficiently specific to permit the reviewing court to
conclude that the ALJ did not arbitrarily discredit the
claimant's testimony.” Orteza v. Shalala,
50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted).
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) (citation
March 28, 2016, the Commissioner superseded Social Security
Ruling (“SSR”) 96-7p, governing the assessment of
a claimant's “credibility, ” and replaced it
with SSR 16-3p. See SSR 16-3p, available
at2016 WL 1119029. SSR 16-3p eliminates the reference to
“credibility, ” clarifies that “subjective
symptom evaluation is not an examination of an
individual's character, ” and requires the ALJ to
consider all of the evidence in an individual's record
when evaluating the intensity and persistence of symptoms.
Id. at *1-2. The ALJ must examine “the entire
case record, including the objective medical evidence; an
individual's statements about the intensity, persistence,
and limiting effects of symptoms; statements and other
information provided by medical sources and other persons;
and any other relevant evidence in the individual's case
record.” Id. at *4.
rejecting plaintiff's testimony, the ALJ relied on
several treatment notes stating that plaintiff's
ulcerative colitis was in remission. Tr. 20-21. As an
example, the ALJ cited a chart note from February 2013 in
which Dr. Maveety “noted that [plaintiff] had done
relatively well on Remicade and continued to have about six
bowel movements per day.” Tr. 21.
to the ALJ's conclusion, Dr. Maveety's assessment
actually supports plaintiff's testimony. The fact that
Dr. Maveety considered six bowel movements per day to be
doing “relatively well” is consistent with
plaintiff's description of his condition. Plaintiff
explained that when his ulcerative colitis was in remission,
it was “very good” in comparison to when it was
not in remission, but it was still “not what anyone
would consider to be normal or desirable.” Tr. 69.
Plaintiff explained that even when in remission, he did not
have full control over his bowels. Id. Before taking
Remicade, he was losing a pound a day and experiencing bloody
diarrhea. Id. He also explained that before he was
on Remicade he was “running to the bathroom” a
dozen times per day, but on Remicade he was walking swiftly
to the bathroom half a dozen times per day. Tr. 60. Moreover,
Dr. Maveety noted that “despite taking Remicade,
” plaintiff still “had trouble with loose urgent
stools.” Tr. 488. Accordingly, Dr. Maveety's
characterization of plaintiff's ulcerative colitis is
consistent with plaintiff's claims.
also relied on a treatment note from June 2016 in which Dr.
Volpi found that plaintiff's colitis was “well
controlled on Remicade.” Tr. 598. However, plaintiff
was having six stools per day throughout 2016. Tr. 599, 602,
604. Therefore, “well controlled” merely reflects
that plaintiff was experiencing six bowel movements per day,
which as explained above, is consistent with his testimony.
further found that plaintiff had “some improvement in
his mental symptoms with therapy and medication
management.” Tr. 22. However, that a person who suffers
from severe mental impairments “makes some improvement
does not mean that the person's impairments no longer
seriously affect her ability to ...