Sullivan v. Commissioner of Social Security, No. 1:2017cv03151 - Document 19 (E.D. Wash. 2018)

Court Description: ORDER GRANTING 15 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING 16 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Case is REVERSED and REMANDED for further administrative proceedings consistent with this Order pursuant to sentence four of 42 U.S.C. § 405(g). Case is closed. Signed by Judge Rosanna Malouf Peterson. (AY, Case Administrator)

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Sullivan v. Commissioner of Social Security Doc. 19 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Oct 24, 2018 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 ANDREW S., NO: 1:17-CV-3151-FVS 8 Plaintiff, v. 9 10 COMMISSIONER OF SOCIAL SECURITY, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 Defendant. 12 BEFORE THE COURT are the parties’ cross-motions for summary 13 14 judgment. ECF Nos. 15, 16. This matter was submitted for consideration without 15 oral argument. Plaintiff is represented by attorney D. James Tree. Defendant is 16 represented by Special Assistant United States Attorney Sarah L. Martin. The 17 Court, having reviewed the administrative record and the parties’ briefing, is fully 18 informed. For the reasons discussed below, Plaintiff’s Motion, ECF No. 15, is 19 granted and Defendant’s Motion, ECF No. 16, is denied. 20 / / / 21 / / / ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 BACKGROUND 2 The facts of the case are set forth in the administrative hearing and 3 transcripts, the ALJ’s decision, and the briefs of Plaintiff and the Commissioner, 4 and are therefore only summarized here. 5 Plaintiff was born in February 1993 and was 20 years old at the time of the 6 hearing. Tr. 214. He did not graduate from high school but later earned a GED. 7 Tr. 43. At the time of the hearing, he had been attending community college full- 8 time for about three weeks. Tr. 43-44. His was let go from his last job at Home 9 Depot after about a month. Tr. 44-45. He previously worked for short stints on a 10 fishing boat in Alaska, at Burger King, as a grocery courtesy clerk, processing 11 cherries, and as an IT intern. Tr. 47-48. 12 Plaintiff testified that he has not been able to perform full-time work due to 13 symptoms of Crohn’s disease, such as frequent bathroom visits, limits on lifting, 14 dizziness, fatigue, frequent breaks, and missing work due to not being able to get 15 out of bed. Tr. 49, 53. He testified that he also has mental limitations, such as 16 stress from not being able to perform at work. Tr. 49. He deals with issues from 17 Crohn’s every day and sometimes has flare-ups when his symptoms are worse. Tr. 18 53. During a flare-up, he cannot get out of bed without becoming dizzy. Tr. 53. 19 He has difficulty making it to the bathroom before a bowel movement and cannot 20 lift anything. Tr. 53. 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 Additionally, Plaintiff testified that if he sits for too long he experiences 2 cramping and nausea and needs to use the restroom. Tr. 50. He also cannot lay 3 down too long or move too much. Tr. 50. He needs to change positions and 4 activities frequently throughout the day. Tr. 50. Bending and lifting increase his 5 symptoms. Tr. 51-52. 6 JURISDICTION 7 Plaintiff Andrew S. 1 (“Plaintiff”) filed for supplemental security income 8 (“SSI”) on October 17, 2013, alleging an onset date of September 17, 2013. Tr. 214- 9 17. Benefits were denied initially, Tr. 98-101, and upon reconsideration, Tr. 105-06. 10 Plaintiff appeared at a hearing before an administrative law judge (ALJ) on January 11 28, 2016. Tr. 39-71. On April 14, 2016, the ALJ denied Plaintiff’s claim, Tr. 20-31, 12 and on July 5, 2017, the Appeals Council denied review. Tr. 1-5. The matter is now 13 before this Court pursuant to 42 U.S.C. § 1383(c)(3). 14 STANDARD OF REVIEW 15 A district court’s review of a final decision of the Commissioner of Social 16 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 17 limited; the Commissioner’s decision will be disturbed “only if it is not supported 18 19 1 20 name and last initial, and, subsequently, Plaintiff’s first name only, throughout this 21 decision. In the interest of protecting Plaintiff’s privacy, the Court will use Plaintiff’s first ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 2 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 3 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 4 (quotation and citation omitted). Stated differently, substantial evidence equates to 5 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 6 citation omitted). In determining whether the standard has been satisfied, a 7 reviewing court must consider the entire record as a whole rather than searching 8 for supporting evidence in isolation. Id. 9 In reviewing a denial of benefits, a district court may not substitute its 10 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 11 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 12 rational interpretation, [the court] must uphold the ALJ’s findings if they are 13 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 14 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 15 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 16 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 17 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 18 decision generally bears the burden of establishing that it was harmed. Shinseki v. 19 Sanders, 556 U.S. 396, 409-10 (2009). 20 / / / 21 / / / ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 2 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 3 the meaning of the Social Security Act. First, the claimant must be “unable to 4 engage in any substantial gainful activity by reason of any medically determinable 5 physical or mental impairment which can be expected to result in death or which 6 has lasted or can be expected to last for a continuous period of not less than twelve 7 months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment must be 8 “of such severity that he is not only unable to do his previous work[,] but cannot, 9 considering his age, education, and work experience, engage in any other kind of 10 substantial gainful work which exists in the national economy.” 42 U.S.C. § 11 1382c(a)(3)(B). 12 The Commissioner has established a five-step sequential analysis to 13 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 14 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work 15 activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in “substantial 16 gainful activity,” the Commissioner must find that the claimant is not disabled. 20 17 C.F.R. § 416.920(b). 18 If the claimant is not engaged in substantial gainful activity, the analysis 19 proceeds to step two. At this step, the Commissioner considers the severity of the 20 claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from 21 “any impairment or combination of impairments which significantly limits [his or ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 her] physical or mental ability to do basic work activities,” the analysis proceeds to 2 step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy 3 this severity threshold, however, the Commissioner must find that the claimant is 4 not disabled. 20 C.F.R. § 416.920(c). 5 At step three, the Commissioner compares the claimant’s impairment to 6 severe impairments recognized by the Commissioner to be so severe as to preclude 7 a person from engaging in substantial gainful activity. 20 C.F.R. § 8 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the 9 enumerated impairments, the Commissioner must find the claimant disabled and 10 11 award benefits. 20 C.F.R. § 416.920(d). If the severity of the claimant’s impairment does not meet or exceed the 12 severity of the enumerated impairments, the Commissioner must pause to assess 13 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 14 defined generally as the claimant’s ability to perform physical and mental work 15 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 16 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. 17 At step four, the Commissioner considers whether, in view of the claimant’s 18 RFC, the claimant is capable of performing work that he or she has performed in 19 the past (past relevant work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is 20 capable of performing past relevant work, the Commissioner must find that the 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 claimant is not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of 2 performing such work, the analysis proceeds to step five. 3 At step five, the Commissioner should conclude whether, in view of the 4 claimant’s RFC, the claimant is capable of performing other work in the national 5 economy. 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the 6 Commissioner must also consider vocational factors such as the claimant’s age, 7 education, and past work experience. 20 C.F.R. § 416.920(a)(4)(v). If the 8 claimant is capable of adjusting to other work, the Commissioner must find that the 9 claimant is not disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable 10 of adjusting to other work, analysis concludes with a finding that the claimant is 11 disabled and is therefore entitled to benefits. 20 C.F.R. § 416.920(g)(1). 12 The claimant bears the burden of proof at steps one through four above. 13 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 14 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 15 capable of performing other work; and (2) such work “exists in significant 16 numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 17 700 F.3d 386, 389 (9th Cir. 2012). 18 19 ALJ’S FINDINGS At step one, the ALJ found Plaintiff has not engaged in substantial gainful 20 activity since October 17, 2013, the application date. Tr. 22. At step two, the ALJ 21 found Plaintiff has the following severe impairment: Crohn’s disease. Tr. 22. At ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 step three, the ALJ found that Plaintiff does not have an impairment or 2 combination of impairments that meets or medically equals the severity of a listed 3 impairment. Tr. 24. The ALJ then found Plaintiff has the residual functional 4 capacity to perform light work with the following additional limitations: 5 6 7 8 9 10 The claimant can lift and/or carry 20 pounds occasionally and 10 pounds frequently. He can sit for about six hours and stand and/or walk for about six hours in an eight-hour day with regular breaks, and he needs to be able to shift between standing and sitting every 30 to 60 minutes over the day. The claimant has an unlimited ability to push/pull within these exertional limitations. Lastly, the claimant needs easy access to a restroom. Tr. 25. At step four, the ALJ found Plaintiff is unable to perform any past relevant 11 work. Tr. 29. After considering the testimony of a vocational expert and 12 Plaintiff’s age, education, work experience, and residual functional capacity, the 13 ALJ found there are other jobs that exist in significant numbers in the national 14 economy that Plaintiff can perform, such as small parts assembler, marking clerk, 15 or mail room clerk. Tr. 30. Therefore, at step five, the ALJ concluded that 16 Plaintiff has not been under a disability, as defined in the Social Security Act, since 17 October 17, 2013, the date the application was filed. Tr. 30. 18 ISSUES 19 Plaintiff seeks judicial review of the Commissioner’s final decision denying 20 supplemental security income benefits under Title XVI of the Social Security Act. 21 ECF No. 15. Plaintiff raises the following issues for review: ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 1. 2 and 3 2. 4 evidence. 5 Whether the ALJ improperly discredited Plaintiff’s symptom claims; Whether the ALJ failed to properly consider the medical opinion ECF No. 15 at 1. 6 7 DISCUSSION A. Symptom Claims 8 Plaintiff contends the ALJ applied the wrong standard and improperly 9 rejected his symptom claims. ECF No. 15 at 6-18. An ALJ engages in a two-step 10 analysis to determine whether a claimant’s testimony regarding subjective pain or 11 symptoms is credible. “First, the ALJ must determine whether there is objective 12 medical evidence of an underlying impairment which could reasonably be 13 expected to produce the pain or other symptoms alleged.” Molina, 674 F.3d at 14 1112 (internal quotation marks omitted). “The claimant is not required to show 15 that her impairment could reasonably be expected to cause the severity of the 16 symptom she has alleged; she need only show that it could reasonably have caused 17 some degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 18 2009) (internal quotation marks omitted). 19 Second, “[i]f the claimant meets the first test and there is no evidence of 20 malingering, the ALJ can only reject the claimant’s testimony about the severity of 21 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal 2 citations and quotations omitted). “General findings are insufficient; rather, the 3 ALJ must identify what testimony is not credible and what evidence undermines 4 the claimant’s complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th 5 Cir. 1995); see also Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he 6 ALJ must make a credibility determination with findings sufficiently specific to 7 permit the court to conclude that the ALJ did not arbitrarily discredit claimant’s 8 testimony.”). “The clear and convincing [evidence] standard is the most 9 demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 10 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 11 924 (9th Cir. 2002)). 12 In assessing a claimant’s symptom claims, the ALJ may consider, inter alia, 13 (1) the claimant’s reputation for truthfulness; (2) inconsistencies in the claimant’s 14 testimony or between his testimony and his conduct; (3) the claimant’s daily living 15 activities; (4) the claimant’s work record; and (5) testimony from physicians or 16 third parties concerning the nature, severity, and effect of the claimant’s condition. 17 Thomas, 278 F.3d at 958-59. 18 As a preliminary matter, the Court notes that the ALJ considered an out-of- 19 date standard in evaluating Plaintiff’s subjective symptom testimony. The ALJ 20 analyzed Plaintiff’s testimony using S.S.R. 96-7p, Tr. 25, which was repealed and 21 replaced by S.S.R. 16-3p. Social Security Ruling 16-3p is applicable to decisions ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 after March 28, 2016, and the ALJ’s decision in this case is dated April 14, 2016. 2 Tr. 31. The new ruling clarifies that “subjective symptom evaluation is not an 3 examination of an individual’s character,” and eliminated the term “credibility.” 4 S.S.R. 16-3p at *1. In Trevizo v. Berryhill, the Court noted, “[t]his ruling makes 5 clear what our precedent already required: that assessments of an individual’s 6 testimony by an ALJ are designed to ‘evaluate the intensity and persistence of 7 symptoms’ . . . and not to delve into wide-ranging scrutiny of the claimant’s 8 character and apparent truthfulness.” 871 F.3d 664, 679 (9th Cir. 2017) (quoting 9 S.S.R. 16-3p). 10 As discussed infra, the ALJ’s evaluation of the record and Plaintiff’s 11 symptom claims is legally insufficient. The Court need not determine whether the 12 ALJ’s error in considering S.S.R. 96-7p is harmless, as Defendant urges, ECF No. 13 16 at 5-6, since this matter is remanded on other grounds. On remand, the ALJ 14 shall consider S.S.R. 16-3p in evaluating Plaintiff’s symptom claims. 15 In assessing Plaintiff’s symptom claims, the ALJ first found Plaintiff’s 16 allegations regarding his symptoms and limitations have generally been 17 inconsistent with the medical evidence and are therefore unpersuasive. Tr. 26. An 18 ALJ may not discredit a claimant’s pain testimony and deny benefits solely 19 because the degree of pain alleged is not supported by objective medical evidence. 20 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 21 F.2d 341, 346-47 (9th Cir. 1991); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 1989). However, the medical evidence is a relevant factor in determining the 2 severity of a claimant’s pain and its disabling effects. Rollins, 261 F.3d at 857; 20 3 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2). Minimal objective evidence is a factor 4 which may be relied upon in discrediting a claimant’s testimony, although it may 5 not be the only factor. See Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). 6 The ALJ found Plaintiff’s alleged 40 pound weight loss is not supported by 7 the record. Tr. 26. The ALJ cited an August 2014 record from Plaintiff’s treating 8 gastroenterologist, Vu Le, M.D., indicating that he had lost 40 pounds over the last 9 year and a half. Tr. 26, 653. The ALJ observed that Plaintiff has not experienced 10 any large weight fluctuations over the course of the record and noted weights of 11 170 pounds (77.11 kg) on October 6, 2013 (Tr. 308); 167.0 pounds on August 28, 12 2014 (Tr. 653); 167 pounds on August 29, 2014 (Tr. 599); 160 pounds on January 13 14, 2015 (Tr. 859); 160 pounds in March 2014; and 171.4 pounds on July 8, 2015 14 (Tr. 908). Tr. 26. The difference of approximately 11 pounds across records cited 15 by the ALJ is reasonably construed as a relatively small weight fluctuation in the 16 context of an alleged 40-pound weight loss. 17 Notwithstanding, Plaintiff points out that Dr. Le originally noted Plaintiff’s 18 statement that he had lost 40 pounds over the last year and a half in September 19 2013, Tr. 422, and that the August 2014 record cited by the ALJ lists the weight 20 loss statement under Plaintiff’s history, suggesting it was not a new statement. 21 ECF No. 15 at 9; Tr. 653. Plaintiff also notes that a record from July 2013 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 indicates Plaintiff weighed 181 pounds (82.1 kg), but by December 2013 his 2 weight was 160 pounds (72.57 kg), a 21-pound weight loss. ECF No. 15 at 9 3 (citing Tr. 399, 4812). 4 Plaintiff contends the ALJ “did not identify any actual inconsistency,” and 5 that Plaintiff’s allegation of a 40-pound weight loss is consistent with the record. 6 ECF No. 15 at 9. The Court fails to see how a documented 20-pound weight loss 7 is consistent with Plaintiff’s assertion of a 40-pound weight loss. The ALJ’s 8 determination that an alleged 40-pound weight loss is inconsistent with the record 9 is correct. 10 However, the ALJ misread or overlooked Dr. Le’s September 2013 record 11 noting Plaintiff’s claim of a 40-pound weight loss over the preceding 18 months, 12 which suggests Plaintiff had lost 40 pounds since March 2012. Tr. 422. Based on 13 the September 2013 record, part of the alleged 40-pound weight loss must have 14 15 2 16 page 399 of the transcript, nor anywhere in the record related to that emergency 17 room visit on July 31, 2013. Additionally, page 481 of the transcript records a 18 weight of 72.57 kilograms rather than 62.57 kilograms mentioned in Plaintiff’s 19 briefing, although Plaintiff properly converted 72.57 kilograms to 160 pounds. 20 Nonetheless, the Court assumes scrivener’s errors account for the discrepancies 21 and gives Plaintiff the benefit of the doubt in evaluating the weights asserted. The Court does not find a reference to Plaintiff’s weight of 82.1 kilograms on ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 preceded the earliest record in this case, which is from July 2013. Thus, while the 2 ALJ’s determination that a 40-pound weight loss is not supported by the record is 3 correct, it is not particularly persuasive or convincing that Plaintiff’s claim of 4 weight loss is exaggerated, since it is possible that Plaintiff accurately reported 5 weight loss which is not documented in the record. 6 The ALJ also found that Plaintiff’s testimony regarding hospitalizations 7 related to Crohn’s disease is not supported by the record. Tr. 27. According to the 8 ALJ, Plaintiff alleged, “that he was hospitalized repeatedly for extended periods of 9 time in 2014.” Tr. 27 (citing Tr. 53, 545). When asked how often he had flare-ups 10 of Crohn’s disease, Plaintiff testified, “[i]n the year 2014 I was in the hospital six 11 times for severe flare-ups, and they ranged from about two weeks long.” Tr. 53. 12 However, as Plaintiff asserts, while the ALJ found this testimony meant Plaintiff 13 alleged being in the hospital for “extended periods of time,” it is clear from the 14 context of Plaintiff’s testimony that his reference to “two weeks” meant the length 15 of the flare-up, not the length of time he spent in the hospital. Tr. 27, 53; ECF No. 16 15 at 9-10. There is no reasonable construction of Plaintiff’s testimony about 17 flare-ups that suggests he was reporting multiple extended stays in the hospital due 18 to Crohn’s flare-ups. 19 With regard to the number of emergency room visits in 2014, the ALJ found 20 that, contrary to Plaintiff’s assertion that he visited the ER six times in 2014, he 21 visited the emergency room only twice due to Crohn’s flare-ups, once in April ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 2014 and once in August 2014. Tr. 27 (citing Tr. 542, 545, 660). However, 2 Plaintiff also visited the emergency room in June 2014 for abdominal pain caused 3 by Crohn’s disease, Tr. 841-42, and in November 2014 for abdominal pain and 4 vomiting, although Crohn’s disease was not specifically mentioned on that visit, 5 Tr. 772. 3 6 Plaintiff additionally cites a January 1, 2015 ER visit for a Crohn’s flare-up 7 which had been going on for three days, Tr. 760, although the Court notes that this 8 does not count as an ER visit in 2014, even if symptoms began in 2014. ECF No. 9 15 at 10. Plaintiff also cites a second June 2014 ER visit for side effects from 10 Crohn’s medication, Tr. 666, although the Court notes that Plaintiff’s symptoms in 11 that instance were not related to a Crohn’s flare-up, per se. Whether Plaintiff 12 visited the ER three, four, or six times for Crohn’s flare-ups is a matter open to 13 interpretation, but it is apparent that the ALJ’s finding that Plaintiff visited the ER 14 only twice for Crohn’s flare-ups is incorrect. The ALJ’s failure to consider other 15 evidence of emergency room visits for Crohn’s-related issues means the ALJ’s 16 finding is not supported by substantial evidence. 17 18 19 3 20 in April 2014, but that record is a duplicate of the record previously mentioned. 21 ECF No. 15 at 10; compare Tr. 542-46 with Tr. 670-74. Plaintiff asserts an additional record from an ER visit to another hospital occurred ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 Next, the ALJ considered the results of a colonoscopy and a CT scan. Tr. 2 27. The ALJ noted the results of a September 2014 colonoscopy showed no signs 3 of inflammation and found it meant Plaintiff’s Crohn’s disease was not active. Tr. 4 27, 594; see also Tr. 909-10. Plaintiff acknowledges the colonoscopy showed only 5 internal hemorrhoids, but asserts that “an endoscopy performed this same day 6 showed inflammation throughout the upper GI tract.” ECF No. 15 at 11 (citing Tr. 7 594). Plaintiff overstates the record, which says only that the endoscopy (EGD) 8 revealed “mild esophagitis, duodenitis/gastritis” and that Dr. Le prescribed 9 omeprazole. Tr. 594. The evidence cited by Plaintiff does not contradict the 10 ALJ’s conclusion regarding inflammation of the colon. This portion of the ALJ’s 11 finding is supported by substantial evidence. 12 The ALJ also noted that during a March 2015 ER visit for abdominal pain, 13 CT scan findings were unremarkable with nonspecific findings of inflammation in 14 the liver, possibly due to a viral illness. Tr. 27, 738-39. Plaintiff contends that this 15 is “one inconclusive test,” and that “all other scans showed positive GI 16 inflammation.” ECF No. 15 at 11 (citing Tr. 368, 388, 786-87). Plaintiff is correct 17 that an August 2013 CT included “findings compatible with A colitis, possibly 18 infectious, inflammatory in etiology.” Tr. 368. A second CT in September 2013 19 found, “[t]hickened appearance of the descending colon. Some of this may be due 20 to lack of distension but colitis is also considered.” Tr. 388. A November 2014 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 CT found “mild segmental mural thickening of a distal loop of small bowel 2 suggestive of inflammatory enteritis.” Tr. 786-87. 3 The ALJ is correct that the March 2015 test showed no inflammation, but 4 the ALJ did not address the three prior CT scans indicating at least some 5 inflammation. The ALJ did not draw any specific conclusion about the March 6 2015 CT scan, but seems to imply that there is no CT scan evidence supporting 7 Plaintiff’s complaints. Tr. 27. While the three earlier CT scans suggest only mild 8 findings which may not ultimately support Plaintiff’s claim of disabling Crohn’s 9 disease, the ALJ’s failure to address those earlier scans means that the conclusion 10 that there is no CT scan evidence of inflammation is not supported by substantial 11 evidence. Without further discussion by the ALJ, the March 2015 CT scan is not a 12 convincing basis for concluding Plaintiff’s symptom claims are inconsistent with 13 the objective evidence. 14 Lastly, the ALJ found that Plaintiff’s claims of chronic fatigue and dizziness 15 are not supported by the record. Tr. 27. The ALJ noted that in December 2013, 16 Plaintiff reported he “overall feels fatigued” but he was able to perform his day-to- 17 day activities.4 Tr. 27, 575. The ALJ noted two occasions when Plaintiff 18 19 20 21 4 Defendant asserts that by considering a record noting Plaintiff experienced fatigue but could do his daily activities, the ALJ “found that [Plaintiff’s] allegations of constant dizziness and fatigue were inconsistent with the fact that he said he was ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 complained of fatigue in October and November 2014 and asserted that Plaintiff 2 otherwise “repeatedly denied fatigue.” Tr. 27, 622, 703. However, the ALJ cited 3 only two additional records supporting the assertion that Plaintiff “repeatedly” 4 denied fatigue. 5 Tr. 27, 859, 870. Plaintiff noted at least one other instance when 5 fatigue was reported, Tr. 653, and one instance where “tiredness” was reported, Tr. 6 870. ECF No. 15 at 12. The Court notes an additional record indicates Plaintiff 7 reported being “drained.” Tr. 657. The ALJ’s assertion that Plaintiff “repeatedly 8 denied fatigue” is not supported by two instances where fatigue was denied. Based 9 on the foregoing, it is not clear that the fatigue evidence is inconsistent with 10 Plaintiff’s symptoms complaints. 11 With regard to Plaintiff’s dizziness complaints, the ALJ noted Plaintiff’s 12 dizziness was described as episodic in December 2013. Tr. 27, 575; see also Tr. 13 586. The ALJ found there were few subsequent reports of Crohn’s-related 14 15 able to complete his daily activities despite his symptoms.” ECF No. 16 at 8 16 (citing TR. 247). The ALJ made no such finding, and the Court is constrained to 17 review only those reasons asserted by the ALJ. Sec. Exch. Comm’n v. Chenery 18 Corp., 332 U.S. 194, 196 (1947); Pinto v. Massanari, 249 F.3d 840, 847-48 (9th 19 Cir. 2001). 20 5 21 contains only 67 pages, so the citation was not considered. Tr. 609-75. The ALJ cited an additional record, Exhibit 15F at page 116. Exhibit 15F ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 dizziness, suggesting the evidence is inconsistent with Plaintiff’s complaints of 2 frequent dizziness. Tr. 26-27, 49, 247. The ALJ cited a record noting that in 3 August 2014, Plaintiff reported dizziness and being “drained” with pain, nausea, 4 vomiting and diarrhea, Tr. 657, but in October 2014 Plaintiff denied dizziness after 5 falling from his tree and hitting his head, Tr. 639. Tr. 27. Plaintiff cites one 6 additional record indicating dizziness from January 2015, ECF No. 15 at 12 (citing 7 Tr. 898-906), and the Court notes that Plaintiff also reported dizziness at an ER 8 visit in March 2015. Tr. 892. Here, the ALJ’s characterization of “few” reports of 9 dizziness is supported by substantial evidence and the dizziness evidence was 10 reasonably determined to be inconsistent with Plaintiff’s complaints. 11 The ALJ cited a number of examples in the record purportedly inconsistent 12 with the objective evidence. Tr. 26-27. However, most of the examples cited by 13 the ALJ are based on errors in considering the evidence or conclusory 14 overstatements of the record, or are otherwise unpersuasive. In light of the ALJ’s 15 errors in considering the record, the few findings that are supported by the 16 evidence are insufficient to constitute a clear and convincing basis for concluding 17 the objective evidence is inconsistent with Plaintiff’s symptom claims. 18 Second, the ALJ found Plaintiff was not entirely compliant in taking 19 prescribed medications or following physician recommendations, suggesting his 20 condition is not as severe as alleged. Tr. 27. It is well-established that 21 unexplained non-compliance with treatment reflects on a claimant’s credibility. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19 1 See Molina, 674 F.3d at 1113 -14 (9th Cir. 2012); Tommasetti v. Astrue, 533 F.3d 2 1035, 1039 (9th Cir. 2008); Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007); 3 Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir.1996); Fair, 885 F.2d at 603-04. 4 While there are any number of good reasons for not doing so, see, e.g., 20 C.F.R. § 5 404.1530(c); Gallant, 753 F.2d at 1455, a claimant’s failure to assert one, or a 6 finding by the ALJ that the proffered reason is not believable, can cast doubt on the 7 sincerity of the claimant’s pain testimony. Fair, 885 F.2d at 603-04. In any event, 8 disability benefits may not be denied because of the claimant’s failure to obtain 9 treatment he cannot obtain for lack of funds. Gamble v. Chater, 68 F.3d 319, 321 10 (9th Cir. 1995). 11 The ALJ acknowledged that some of Plaintiff’s noncompliance was due to 12 problems with insurance coverage. Tr. 27, 56, 259. The ALJ noted that in April 13 2014, Plaintiff reported that, due to insurance issues, he did not start the 14 medication Asacol which had been prescribed five months earlier, and he had 15 stopped taking sulfasalazine at that time, as well. Tr. 27, 427, 572. The ALJ 16 observed that Plaintiff stopped sulfasalazine because he did not think it was 17 helping much, suggesting Plaintiff was noncompliant, but overlooked statements in 18 the same record indicating Plaintiff was “told to stop by GI” and “[w]as told to 19 stop by phone 4 days ago.” Tr. 27, 427. In April 2014, Plaintiff had been without 20 Crohn’s treatment for five months, and the ALJ noted Dr. Guturu indicated “his 21 symptoms [loose stools on a daily basis] are suggestive of uncontrolled disease ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 20 1 rather than flareup.” Tr. 27, 573. The ALJ acknowledged Plaintiff experienced 2 side effects from medication such as rash and constipation, but noted the provider 3 again indicated his symptoms were due to uncontrolled Crohn’s. Tr. 27, 654. 4 The ALJ’s reasoning is unconvincing. The ALJ noted lack of insurance 5 coverage and side effects from medications as excuses for noncompliance, but did 6 not find those reasons unbelievable. Fair, 885 F.2d at 603-04. Since Plaintiff was 7 unable to take medication due to side effects, was unable to take medication due to 8 lack of insurance coverage, and was directed to stop certain medication, the 9 implication that Plaintiff’s noncompliance with medication caused his Crohn’s to 10 11 be uncontrolled is not supported by substantial evidence. Next, the ALJ found that other noncompliance exacerbated some of 12 Plaintiff’s symptoms. Tr. 27. The ALJ observed that in December 2014, 13 Plaintiff’s physician referred him to physical therapy for abdominal pain, and in 14 January 2015 it was noted that he was waiting to find a physical therapy clinic his 15 insurance would cover, Tr. 27, 590, 868. The ALJ noted there is no evidence that 16 Plaintiff ever started physical therapy, implying this was due to noncompliance. 17 Tr. 27. However, it is not apparent from the record that an opportunity for physical 18 therapy was ever established, or that the lack of physical therapy was a matter of 19 noncompliance. The record is silent about physical therapy after January 2015, so 20 this is not compelling evidence of noncompliance. 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 21 1 The ALJ also cited a record from October 2013 noting that, one month after 2 Plaintiff’s gastroenterologist advised him not to lift more than ten pounds, he 3 picked up his “heavier” girlfriend and then complained of intense abdominal pain. 4 Tr. 27, 376. This is an instance which could be reasonably construed as 5 noncompliance with medical recommendations. Plaintiff acknowledged this was 6 an “admittedly self-inflicted exacerbation,” but argues that this is evidence that 7 “contradicts the RFC” by demonstrating that Plaintiff is more limited than the RFC 8 finding. ECF No. 15 at 16. The argument is not persuasive. The RFC finding 9 limits Plaintiff to lifting or carrying 20 pounds occasionally and 10 pounds 10 frequently. Tr. 25. Plaintiff’s girlfriend presumably weighs well over 20 pounds, 11 so any injury from attempting to lift her would not be inconsistent with the RFC 12 finding. 13 Lastly, the ALJ found that Plaintiff made relatively infrequent trips to the 14 doctor for his allegedly disabling symptoms, and that Plaintiff failed to show up for 15 doctor appointments on a number of occasions. Tr. 27. The ALJ noted that after 16 visiting his gastroenterologist, Dr. Le, in August 2014, Plaintiff missed the next 17 three appointments and a video capsule endoscopy study. Tr. 27, 907. The ALJ 18 further observed that when Plaintiff returned to Dr. Le in July 2015, he complained 19 that nothing relieved the constant sharp pain in his lower mid abdomen. Tr. 28, 20 907-08. The pain in his right lower quadrant was gone, and the ALJ noted 21 Plaintiff’s bowel movements had improved from two to three per day in September ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 22 1 2013 and April 2014 to one per day. Tr. 28, 421, 572, 908. The ALJ also noted 2 Dr. Le found Plaintiff’s Crohn’s was “mild,” and the record showed no further 3 visits, testing, or medication for Plaintiff’s Crohn’s disease. Tr. 28. 4 Additionally, the ALJ found that Plaintiff’s claim that he missed 5 appointments with Dr. Le due to lack of transportation is not believable. Tr. 28, 6 52. The ALJ noted that bus fare for the three mile ride to Dr. Le’s office is $1.00 7 each way and found it “highly improbable that the claimant has been unable to 8 afford a $2.00 bus fare to see a specialist for what he is claiming is disabling pain.” 9 Tr. 28. Plaintiff contends that “while $2 may seem like an insignificant amount of 10 money to an ALJ, it is [significant] to a man on a fixed income of $197 per 11 month.” ECF No. 15 at 17. The ALJ’s inference from the evidence is reasonable. 12 The ALJ made a finding that the reason proffered by Plaintiff for failing to follow 13 through with his appointments with his treating specialist is not believable, and 14 therefore reasonably questioned the veracity of Plaintiff’s symptom claims on this 15 basis. Fair, 885 F.2d at 603-04 16 Plaintiff further contends that he was not consistently treated for a number of 17 reasons which “clearly justify any lack of treatment.” ECF No. 15 at 17. Although 18 the ALJ’s findings regarding noncompliance contained errors, the Court does not 19 make a finding that Plaintiff’s lack of treatment was justified as that issue must be 20 reconsidered by the ALJ. Similarly, even though some portions of the ALJ’s 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 23 1 findings regarding lack of treatment were reasonable, overall, the ALJ’s findings 2 regarding lack of treatment were not supported by substantial evidence. 3 The ALJ misinterpreted and misconstrued the record in evaluating Plaintiff’s 4 symptom claims overall. Although a few of the ALJ’s symptom claim findings 5 were based on the record and reasonable interpretations of the evidence, the errors 6 and oversights in evaluating the record mean that the ALJ’s reasons for finding 7 Plaintiff’s symptom claims less than fully credible are not clear and convincing, or 8 supported by substantial evidence. Thus, the matter must be remanded for 9 reconsideration of Plaintiff’s symptoms claims. 10 B. Medical Opinions 11 Plaintiff contends the ALJ improperly discounted the medical opinion of 12 physician Jeremiah Crank, M.D., and failed to assign weight to the opinions of 13 treating gastroenterologist, Vu Le, M.D., and reviewing physician Brent Packer, 14 M.D. ECF No. 10 at 7-10. 15 There are three types of physicians: “(1) those who treat the claimant 16 (treating physicians); (2) those who examine but do not treat the claimant 17 (examining physicians); and (3) those who neither examine nor treat the claimant 18 but who review the claimant’s file (nonexamining or reviewing physicians).” 19 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (brackets omitted). 20 “Generally, a treating physician’s opinion carries more weight than an examining 21 physician’s, and an examining physician’s opinion carries more weight than a ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 24 1 reviewing physician’s.” Id. “In addition, the regulations give more weight to 2 opinions that are explained than to those that are not, and to the opinions of 3 specialists concerning matters relating to their specialty over that of 4 nonspecialists.” Id. (citations omitted). 5 If a treating or examining physician’s opinion is uncontradicted, an ALJ may 6 reject it only by offering “clear and convincing reasons that are supported by 7 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 8 “However, the ALJ need not accept the opinion of any physician, including a 9 treating physician, if that opinion is brief, conclusory and inadequately supported by 10 clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 11 (internal quotation marks and brackets omitted). “If a treating or examining doctor’s 12 opinion is contradicted by another doctor’s opinion, an ALJ may only reject it by 13 providing specific and legitimate reasons that are supported by substantial 14 evidence.” Bayliss, 427 F.3d at 1216 (citing Lester, 81 F.3d at 830-31). 15 1. 16 Dr. Crank examined Plaintiff and completed a DSHS “Physical Functional 17 Evaluation” form in December 2013. Tr. 427-33. He diagnosed Crohn’s disease 18 with abdominal pain and bloody stools, and indicated the condition caused a marked, 19 or “very significant,” interference in Plaintiff’s ability to perform work-related 20 activities. Tr. 432. Dr. Crank opined that Plaintiff is limited to sedentary work. Tr. 21 433. The ALJ gave partial weight to Dr. Crank’s opinion. Tr. 28. Jeremiah Crank, M.D. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 25 1 Because Dr. Crank’s opinion was contradicted by the opinion of reviewing 2 physician, Norman Staley, M.D., Tr. 92-95, the ALJ was required to provide specific 3 and legitimate reasons for rejecting Dr. Crank’s opinion. Bayliss, 427 F.3d at 1216. 4 The ALJ gave one reason for rejecting Dr. Crank’s opinion: the ALJ found 5 that there is a lack of subsequent evidence supporting Dr. Crank’s assessment of 6 sedentary limitations. Tr. 28. The consistency of a medical opinion with the record 7 as a whole is a relevant factor in evaluating a medical opinion. Lingenfelter v. 8 Astrue, 504 F.3d 1028, 1042 (9th Cir. 2007); Orn, 495 F.3d at 631. The ALJ 9 concluded that the lack of follow up gastroenterology appointments and no ongoing 10 medication for allegedly disabling symptoms reflect an absence of consistent 11 evidence. Tr. 28. However, as discussed supra, the ALJ’s findings regarding 12 Plaintiff’s reasons for not receiving treatment or not complying with treatment are 13 flawed. The Court concludes that the errors in evaluating and weighing the record 14 regarding Plaintiff’s symptoms complaints apply equally to the consideration of Dr. 15 Crank’s opinion. Thus, substantial evidence does not support the ALJ’s reason for 16 rejecting Dr. Crank’s conclusions. On remand, Dr. Crank’s opinion should be 17 reevaluated and legally sufficient reasons must be provided for rejecting any portion 18 of the opinion. 19 2. 20 In September 2013, Plaintiff saw Dr. Le for complaints of abdominal pain and 21 Vu Le, M.D., and Brent Packer, M.D. diarrhea. Tr. 421-22. Dr. Le prescribed medication to treat bright red blood from ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 26 1 the rectum, ordered a colonoscopy, and indicated, “[n]o lifting more than 10 lbs.” 2 Tr. 421. The ALJ did not address or mention the lifting limitation in discussing the 3 RFC finding, nor did the ALJ attribute any weight to Dr. Le’s statement regarding 4 lifting. 5 In December 2013, Dr. Packer completed a DSHS “Review of Medical 6 Evidence” form. Tr. 853. He reviewed medical evidence from November 2013 and 7 noted Dr. Crank’s opinion that Plaintiff can do sedentary work. Tr. 853. Dr. Packer 8 opined that Dr. Crank’s opinion is consistent with the medical evidence and 9 indicated a more restrictive RFC in the future might be appropriate, if Plaintiff’s 10 condition could not be controlled with prescription medication. Tr. 853. The ALJ 11 did not address or mention Dr. Packer’s opinion in evaluating the medical opinion 12 evidence. 13 Because this matter is remanded on other grounds, on remand the ALJ should 14 consider and discuss the opinions of Dr. Le and Dr. Packer, and assign weight as the 15 ALJ determines is appropriate. 16 17 CONCLUSION After reviewing the record and the ALJ’s findings, the Court concludes that 18 the ALJ’s decision is not supported by substantial evidence and free of harmful 19 legal error. The matter must be remanded for reconsideration of the evidence 20 regarding Plaintiff’s symptom claims and for reconsideration of the medical 21 opinion evidence. The ALJ shall consider applicable Social Security Rulings in ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 27 1 effect at the time of the ALJ’s new decision, as well as any other appropriate 2 authority. On remand, the testimony of a medical expert may be helpful in 3 interpreting the medical evidence and evaluating the record overall. 4 Accordingly, 5 1. Plaintiff’s Motion for Summary Judgment, ECF No. 15, is GRANTED. 6 2. Defendant’s Motion for Summary Judgment, ECF No. 16, is DENIED. 7 3. This case is REVERSED and REMANDED for further administrative 8 proceedings consistent with this Order pursuant to sentence four of 42 U.S.C. § 9 405(g). 10 IT IS SO ORDERED. The District Court Clerk is directed to enter this 11 Order and provide copies to counsel. Judgment shall be entered for Plaintiff and the 12 file shall be CLOSED. 13 DATED October 24, 2018. 14 15 s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON United States District Judge 16 17 18 19 20 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 28

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