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Brandon A. v. Berryhill

United States District Court, D. Oregon, Medford Division

August 6, 2019

BRANDON A., [1] Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Youlee Yim You, United States Magistrate Judge.

         Brandon 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.


         Born in 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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, 682.


         Plaintiff 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. § 422.210.


         The 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.


         Disability 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, Tr. 14-15.

         At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity after the alleged onset date. Tr. 15.

         At step two, the ALJ found that plaintiff has the following severe impairments: ulcerative colitis, major depressive disorder, anxiety disorder, autism spectrum disorder, and hoarding disorder. Id.

         At step 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. Tr. 18.

         At step four, the ALJ found plaintiff could not perform his past relevant work as a produce clerk or cart attendant. Tr. 27.

         At step 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. 27-28.


         Plaintiff 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.

         I. Subjective Symptom Testimony

         When a 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 omitted).

         Effective 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.

         A. Effective Treatment

         In 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.

         Contrary 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.”[2] Tr. 488. Accordingly, Dr. Maveety's characterization of plaintiff's ulcerative colitis is consistent with plaintiff's claims.

         The ALJ 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.

         The ALJ 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 ...

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