# Armstrong v. Commissioner Social Security Administration

> District Court, D. Oregon · August 6, 2019

URL: https://www.frixlaw.com/law-library/cases/10391044

## Case

- **Court:** District Court, D. Oregon
- **Decided:** August 6, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10391044

## How later opinions describe it (automated extraction)

- discussing Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
MEDFORD DIVISION

BRANDON A.,1

Plaintiff,
Case No. 1:18-cv-01390-YY
v.
OPINION AND ORDER
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

Defendant.

YOU, 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.

1 In the interest of privacy, this opinion uses only the first name and the initial of the last name of
the non-governmental party or parties in this case. Where applicable, this opinion uses the same
designation for a non-governmental party’s immediate family member(s).
BACKGROUND
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.
PROCEDURAL HISTORY
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.
STANDARD OF REVIEW
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.
SEQUENTIAL ANALYSIS AND ALJ FINDINGS
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.
DISCUSSION
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 at 2016 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

2 Dr. Maveety noted that plaintiff also had “tried a number of additional treatments including
psyllium, Lialda, metronidazole, prednisone, colestipol and Imodium” but they “have been
ineffective in treating the frequent stools.” Tr. 484.
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 function in a workplace.” Holohan v.
Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001).
The Commissioner argues that plaintiff’s depression was effectively controlled with
medication. Def. Br. 5, ECF #18 (citing Warre ex rel E.T. IV v. Comm’r Soc. Sec. Admin., 439
F.3d 1001, 1006 (9th Cir. 2006)). This contention is not born out by the record. In July 2015,
plaintiff’s therapist noted that plaintiff had been depressed for “at least 5 years” and that he was
depressed “more days than not.” Tr. 640. Two months later, plaintiff was still depressed and
having suicidal ideation. Tr. 658. In October 2015, plaintiff was feeling hopeless and reported

“chronic, daily, passive thoughts of suicide.” Tr. 669. Plaintiff had previously been diagnosed
with persistent depressive disorder, and at the October 2015 appointment, Dr. Jenson diagnosed
plaintiff with major depressive disorder. Id.
The Commissioner cites a November 2015 treatment record in which plaintiff said he had
more hope and less thoughts of suicide. Def. Br. 5, ECF #18 (citing Tr. 673). Nevertheless, that
same date, plaintiff reported that he had not noticed a difference in his depressed mood or
anxiety. Tr. 673. The Commissioner also relies on the fact that Dr. Jenson opined plaintiff had
experienced a “fair response” to antidepressants. Def. Br. 5, ECF #18 (citing Tr. 675).
However, a “fair response” does not indicate significant improvement. See Holohan, 246 F.3d at
1205.
Additionally, in 2016, plaintiff continued to experience “depressed mood, hopelessness,
[and] isolation.” Tr. 679. Although Dr. Jenson had doubled plaintiff’s dosage of Wellbutrin,
plaintiff reported that even the double dose was “not really helping.” Id. Plaintiff felt “worthless

and hopeless” and continued to have suicidal ideation. Tr. 682. Plaintiff’s therapist assessed that
there was “some risk” of suicide attempt. Tr. 685. In early 2017, plaintiff continued to report
feeling depressed, and told his therapist that he did not care whether he lived or died. Tr. 693.
Accordingly, despite the slight improvement that occurred briefly in November 2015, the record
reflects that plaintiff’s depression was not effectively treated. See Garrison, 759 F.3d at 1017
(the ALJ may not merely cherry-pick isolated inconsistencies with the objective medical record
to discount a plaintiff’s entire symptom testimony).
Finally, the Commissioner relies on a March 2017 treatment note where plaintiff reported
that his hoarding had improved and he was cleaning his house “somewhat.” Tr. 697. Again, the

fact that there was some degree of improvement does not establish that plaintiff’s impairment
was under control. Holohan, 246 F.3d at 1205. Moreover, at that same appointment, Dr. Jenson
assessed that plaintiff’s hoarding was still a problem, and a few weeks later plaintiff
acknowledged that his house was “still trashy.” Tr. 700. Therefore, the ALJ’s finding that
plaintiff’s impairments were effectively treated is not a clear and convincing reason for
discounting plaintiff’s subjective symptom testimony.
B. Failure to Seek Treatment
The ALJ found that the “record does not reflect significant mental health treatment until
somewhat recently, beginning in July 2015.” Tr. 22. While plaintiff may have delayed seeking
mental health treatment, the Ninth Circuit has criticized reliance on a lack of treatment as a basis
to reject mental health complaints, opining that “it is a questionable practice to chastise one with
a mental impairment for the exercise of poor judgment in seeking rehabilitation.” Nguyen v.
Chater, 100 F.3d 1462, 1465 (9th Cir. 1996).
Moreover, the record reveals that plaintiff lacks insight into his mental impairments. In

fact, his insight and judgment have been repeatedly assessed as fair. Tr. 642, 675, 685, 698.
Plaintiff’s stepmother explained that plaintiff thinks he is smarter than everyone else and does
not fully comprehend his mental disabilities. Tr. 339. Moreover, plaintiff believed he did not
have any problems with communication, although Dr. Cole opined plaintiff had “problems
interacting with others,” plaintiff was referred to a case manager for skills training in
communication, and plaintiff’s therapist assessed that he had “deficits in emotional reciprocity,
abnormal social approach, [and] failure to initiate/respond to social interactions.” Tr. 349, 647,
656, 682.
The ALJ also found that plaintiff’s failure to seek further work-up with Dr. Maveety

tended “to undermine his allegation regarding the[] severity and limiting effects [of his
impairments].” Tr. 21. The record reflects that Dr. Maveety had been treating plaintiff for over
three years, during which time plaintiff continued to suffer from symptoms of ulcerative colitis.
Tr. 419. Dr. Maveety could not find objective evidence of active ulcerative colitis, despite
plaintiff’s persistent symptoms. Id. Nevertheless, Dr. Maveety recommended that plaintiff
continue with treatment for ulcerative colitis. Tr. 419. It is not unreasonable that plaintiff did
not seek further testing to verify active ulcerative colitis in 2014, given that a colonoscopy
showed active ulcerative colitis in 2013, plaintiff was continuing to experience symptoms of
colitis, and he was continuing to receive treatment for colitis. Tr. 419, 598. Furthermore, as
discussed above, the record is consistent with plaintiff’s testimony that even when his colitis was
in remission, he was experiencing six bowel movements per day. Thus, it is not clear how
plaintiff’s failure to seek further testing in 2014 undermines his symptom testimony. As such,
the purported failure to seek treatment is not a clear and convincing reason for discounting
plaintiff’s testimony.

C. Non-Compliance With Treatment
The Commissioner argues that plaintiff did not attempt a special diet or see a dietician as
recommended by his physician. Def. Br. 4, ECF #18. Contrary to this contention, there is no
evidence in the record that plaintiff was referred to a dietician or that any of his treating
providers recommended he see a dietician. Furthermore, the record reflects that plaintiff did
attempt a special diet on several occasions. Tr. 63-66. Despite the fact that the ALJ cut short
plaintiff’s explanation,3 it is clear from plaintiff’s testimony that he implemented the special diet
for travel and other specific short-term purposes. Plaintiff explained that the special diet
consisted of eliminating all fruits, vegetables, whole grains, and any other foods high in fiber.

Tr. 63-66. He noted that although it was effective in helping him control his bowels for short
periods, it was not sustainable in the long term because it was a “very unhealthy diet.” Tr. 64.
In sum, plaintiff was essentially presented with a Hobson’s choice: either attempt to
control his symptoms with an unhealthy diet, or eat a healthy diet and potentially aggravate his
symptoms. While a doctor opined that a special diet would be necessary for plaintiff to work,

3 The pertinent portion of the transcript provides:

Plaintiff: I mean there was a—when I have to—do, do things like this or
travel, you know -.
ALJ: I’m not asking you about when you travel.

Tr. 64.
the doctor never stated that such a diet was recommended for plaintiff’s long-term health.
Notably absent from the record is any actual recommendation from a doctor that plaintiff
implement such a diet on a continuing basis. Thus, the record does not support the ALJ’s
assertion that plaintiff was non-compliant with his treatment.
D. Activities of Daily Living

The ALJ found that plaintiff’s activities “belie the alleged severity of both mental and
physical symptoms/limitations.” Tr. 23. Specifically, the ALJ found the fact that plaintiff goes
to the library “belies the alleged frequency and unpredictability of his bowel issues and also
indicates he can tolerate occasional public interaction.” Tr. 23. However, plaintiff explained
that he walked to the library, and it was a short enough distance that he went to the bathroom
right before he left home and again as soon as he arrived. Tr. 68. Plaintiff also reported that
while he was at the library he went back and forth to the restroom all the time. Tr. 67.
Furthermore, the fact that plaintiff went to the library establishes only that he could tolerate
being in public, not that he was engaging in social interactions with the staff or other patrons.

Plaintiff testified that he read at the library, and there is nothing to indicate that he did any form
of socializing.
The ALJ also found that plaintiff’s ability to read books about history and science fiction
contradicts his claims that he has problems with focus and understanding, and that his ability to
read and play video games undermines his alleged problems with eyesight. Tr. 23. Notably,
plaintiff did not testify that he had difficulty understanding reading materials. Moreover, the fact
that plaintiff is able to read does not necessarily show he did not have problems with
concentration or focus. In fact, both plaintiff’s therapist and Dr. Jenson rated plaintiff’s
concentration as poor, and Charlotte S. reported that plaintiff “loses focus very easily.” Tr. 338,
640, 667. With regard to his eyesight, plaintiff merely testified that he cannot read or see a
computer screen without his glasses, but with his glasses he can see fine. Tr. 69. Thus,
plaintiff’s testimony about his impaired vision is consistent with his activities.
The ALJ further found that “contrary to [plaintiff’s] alleged social difficulties,” he “uses
Facebook and has contacted at least two high school friends.” Tr. 23. However, the ability to

post on Facebook is not inconsistent with social difficulties. Also, the fact that plaintiff
“contacted” two former high school classmates does not establish that he engaged in any
sustained communication with them and it certainly does not demonstrate that plaintiff had any
significant ability to interact socially. The record, in fact, reflects that he did not have such
ability. Plaintiff’s therapist observed that plaintiff had a “lack of social skills.” Tr. 679.
Charlotte S. described plaintiff as “socially inept” and incapable of making friends. Tr. 339.
Plaintiff’s stepmother noted that plaintiff is “very regressed socially” and has no friends. Tr.
341. Plaintiff himself reported that he was a loner and had no friends Tr. 561, 682.
Additionally, Dr. Cole opined that plaintiff had deficits in social reciprocity, and plaintiff’s

scores on the Vineland Adaptive Behavior Scales reflected that his adaptive level for
socialization was low. Tr. 560-61.
Citing plaintiff’s ability to go to the library and the store, the ALJ found that plaintiff’s
“ulcerative colitis symptoms are not as limiting as alleged” because he is “able to accommodate
them well enough to be out of the house regularly.” Tr. 23. However, as discussed above,
plaintiff’s ability to go to the library is not inconsistent with his symptom testimony because he
used the bathroom before leaving and upon arriving, and frequently while there. Likewise,
plaintiff testified that he always used the bathroom when he went to the store. Tr. 70. Therefore,
plaintiff’s activities of daily living are not a proper basis for discounting his testimony.
E. RFC
The ALJ found that plaintiff’s alleged symptoms are adequately accounted for by the
RFC. Tr. 23. Noting that plaintiff reported he went to the bathroom every 30 minutes to two
hours, the ALJ concluded that plaintiff’s bathroom needs were accommodated by the fact the
RFC included three unscheduled breaks, as well as regular breaks. Id. However, the RFC only

accounts for the low end of the range reported by plaintiff. Three unscheduled breaks and three
regular breaks provides a total of six breaks. Plaintiff reported needing to use the restroom every
30 minutes to two hours, which would be four to sixteen times in an eight-hour day. Thus, the
RFC does not adequately accommodate plaintiff’s bathroom needs.
The Commissioner argues that Dr. Volpi concluded plaintiff could work with a special
diet and “restroom services.” Def. Br. 5, ECF #18. As explained above, however, despite
concluding that plaintiff would require a special diet in order to work, Dr. Volpi did not actually
prescribe or recommend such a diet. Moreover, there is no dispute that plaintiff needs ready
access to restroom services to be able to work—the critical question is how many bathroom

breaks plaintiff needs. Dr. Volpi’s opinion provides no insight into the number of breaks that
plaintiff would require. As such, Dr. Volpi’s opinion does not serve as substantial evidence that
the RFC adequately accounts for plaintiff’s impairments.
F. Inconsistent Statements
The Commissioner argues that plaintiff’s function report, in which he stated that he goes
to the bathroom every 30 minutes to two hours, is inconsistent with his testimony that he was
having six bowel movements per day. Def. Br. 6, ECF #18. This argument fails for several
reasons. First, the Commissioner’s argument was not relied on by the ALJ, and is therefore an
impermissible post hoc rationalization. Bray v. Commissioner, 554 F.3d 1219, 1225 (9th Cir.
2009). Second, the function report was filled out in 2014 and plaintiff testified in 2017; that the
frequency at which he was going to the bathroom may have changed over the course of several
years does not create an inconsistency in his testimony. Tr. 38, 283. Third, despite the fact that
throughout most of the relevant period plaintiff consistently reported passing six stools per day,
the record clearly establishes that plaintiff often required twice as many trips to the bathroom to

avoid accidents. Tr. 72-73, 418. Plaintiff’s condition created difficulty in differentiating
between the need to pass stool and the need to pass gas, resulting in the need for additional trips
to the bathroom. Tr. 70, 418, 542. Therefore, the fact that plaintiff was having six bowel
movements per day in 2017, does not mean that plaintiff was making only six trips to the
bathroom per day.
G. Lack of Medical Evidence
The only remaining basis for rejecting plaintiff’s testimony is the lack of medical
evidence. However, the lack of medical evidence may not be the ALJ’s sole reason for
discounting a claimant’s testimony. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)

(“[T]he Commissioner may not discredit the claimant’s testimony as to the severity of symptoms
merely because they are unsupported by objective medical evidence.”). Accordingly, even if the
lack of medical evidence qualified as a clear and convincing reason, it would not be sufficient
because the other reasons the ALJ provided for discounting plaintiff’s symptom testimony are
not clear and convincing.
II. Medical Opinion Evidence
The ALJ is responsible for resolving ambiguities and conflicts in the medical
testimony. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The ALJ must provide
clear and convincing reasons for rejecting the uncontradicted medical opinion of a treating or
examining physician, or specific and legitimate reasons for rejecting contradicted opinions, so
long as they are supported by substantial evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1216
(9th Cir. 2005). However, “[t]he ALJ need not accept the opinion of any physician, including a
treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical
findings.” Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012). Additionally, the ALJ may

discount physicians’ opinions based on internal inconsistencies, inconsistencies between their
opinions and other evidence in the record, or other factors the ALJ deems material to resolving
ambiguities. Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601-02 (9th Cir. 1999).
Plaintiff argues that the ALJ improperly assessed the medical opinion of examining
physician Dr. Cole. Dr. Cole provided opinions in 2005, 2015, and 2017. The ALJ gave no
weight to the 2005 opinion and partial weight to the 2015 and 2017 opinions. Tr. 25-26. The
ALJ gave different reasons for rejecting each of the opinions. Id. The court addresses each of
Dr. Cole’s opinions in turn.
A. Dr. Cole’s 2005 Opinion

The ALJ gave no weight to Dr. Cole’s 2005 opinion, finding that it “significantly pre-
dates the alleged onset date, as well as the prior administrative determination dated May 2010.”
Tr. 26. This was a specific, legitimate reason for rejecting the doctor’s opinion; thus, the ALJ
properly rejected Dr. Cole’s 2005 opinion.
B. Dr. Cole’s 2015 Opinion
In 2015, Dr. Cole opined that “if [plaintiff] pursues a vocational placement in the near
future, then it is presumed that his: physical problems associated with colitis/bathroom needs
would be the primary factors, which would impact his overall level of vocational success.” Tr.
555. The ALJ gave only partial weight to Dr. Cole’s 2015 opinion because the doctor “expressly
stated that [plaintiff’s] physical condition was his primary problem with respect to work,” but
“[t]his is outside of Dr. Cole’s expertise[.]” Tr. 25.
However, one does not need to be a medical expert to recognize that a condition that
causes a person to rush to the bathroom six to twelve times per day would interfere with his
ability to work. Indeed, there is a no dispute that plaintiff’s colitis is one of the primary factors

impacting plaintiff’s ability to work. Additionally, Dr. Cole concluded that “further medical
evaluation is suggested to determine the client’s specific physical limitations.” Tr. 555-56. This
reflects Dr. Cole’s acknowledgement that despite it being generally apparent that plaintiff’s
colitis would present an obstacle to his employment, someone with more expertise needed to
determine the extent that the colitis would limit plaintiff. As such, the ALJ improperly rejected
Dr. Cole’s 2015 opinion.
C. Dr. Cole’s 2017 Opinion
The ALJ gave partial weight to Dr. Cole’s 2017 opinion. Tr. 24. The ALJ rejected Dr.
Cole’s assessment that plaintiff would have moderate limitations interacting with supervisors and

co-workers, finding that the record showed plaintiff could spend time with family members and
had no particular problem with authority figures. Tr. 25, 565. The ability to “spend time” with
family members does little to demonstrate that a person can interact appropriately with
supervisors and co-workers. See Whitney W. v. Berryhill, No. 6:17-cv-00972-CL, 2019 WL
1877973, at *6 (D. Or. Mar. 28, 2019), report and recommendation adopted 2019 WL 1877963
(D. Or. Apr. 26, 2019) (rejecting the Commissioner’s argument that a claimant’s ability to
maintain a relationship with family conflicted with limitations in her ability to interact with
supervisors, and noting that the argument was “baffling”). Furthermore, consistent with Dr.
Cole’s opinion, plaintiff’s therapist observed that plaintiff had difficulty with social interactions,
and plaintiff’s family reported that he was socially inept. Tr. 339, 341, 682.
While the ALJ asserted that plaintiff had no problem with authority figures, in reality,
plaintiff reported that he gets along with authority figures “as best as [he] can.” Tr. 281. This
falls short of establishing that plaintiff is capable of getting along with authority figures and

certainly implies that he has some degree of limitation in that area. Given plaintiff’s documented
difficulties with social interaction, Dr. Cole’s assessment is supported by the record.
The ALJ gave little weight to Dr. Cole’s opinion that plaintiff had marked limitation in
the ability to respond appropriately to usual work situations and to changes in a routine work
setting. Tr. 25. In support of this finding, the ALJ relied on Dr. Cole’s examination notes, which
reflected that plaintiff “presented with good mood, congruent affect, good eye contact, pressured
but intelligent speech, and was overall engaged and cooperative.” Id. It is unclear how any of
those observations demonstrate an ability to respond appropriately to changes in a work setting.
The ALJ also cited Dr. Cole’s observations that plaintiff’s insight and judgment were “fair.” Id.

However, contrary to the ALJ’s conclusion, deficits in insight and judgment, if anything, would
seem to support Dr. Cole’s assessment. Additionally, Dr. Cole’s conclusion is supported by the
assessment of plaintiff’s therapist that plaintiff had an “inflexible adherence to routines.”
Tr. 682. Dr. Cole’s opinion is further supported by the testimony of plaintiff and Charlotte S.,
who stated that plaintiff could not handle changes in his routine. Tr. 282, 299.
The ALJ also gave little weight to Dr. Cole’s responses on the check-box form because
they were not supported by further explanation. Tr. 25. However, the ALJ’s characterization is
not entirely accurate. In the spaces where Dr. Cole was prompted to provide further explanation,
he referred back to his psychodiagnostic evaluation. Tr. 565. His evaluation included the
Vineland Adaptive Behavior Scales examination, which reflected that plaintiff had a low
adaptive functioning level in communication and socialization. Tr. 561. The examination results
support Dr. Cole’s assessment that plaintiff would be limited in his ability to interact with
supervisors and co-workers. Dr. Cole further observed in his evaluation that plaintiff suffers
from anxiety around unfamiliar people and is “rather inflexible” in his routines, which supports

the conclusion that plaintiff would not be able to respond appropriately to changes in the work
setting. Tr. 559-60.
Finally, the ALJ gave less weight overall to Dr. Cole’s opinion because he
“inappropriately opined that the claimant’s physical condition (which is outside of Dr. Cole’s
expertise) would be a primary factor affecting his vocational success.” Tr. 25. However, as
discussed above, this was not a proper basis for rejecting Dr. Cole’s opinion. Therefore, the ALJ
improperly rejected Dr. Cole’s 2017 opinion.
III. Lay Witness Testimony
Lay witness testimony regarding the severity of a claimant’s symptoms or how an

impairment affects a claimant’s ability to work is competent evidence that an ALJ must take into
account. Nguyen, 100 F.3d at 1467. To reject such testimony, an ALJ must provide “reasons
that are germane to each witness.” Rounds v. Comm’r, 807 F.3d 996, 1007 (9th Cir. 2015)
(quoting Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012) (remaining citation omitted)).
Further, the reasons provided also must be “specific.” Taylor v. Comm’r of Soc. Sec. Admin.,
659 F.3d 1228, 1234 (9th Cir. 2011) (citing Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir.
2009)). However, where the ALJ has provided clear and convincing reasons for rejecting the
claimant’s symptom testimony, and the lay witness has not described limitations beyond those
alleged by the claimant, the ALJ’s failure to provide germane reasons for rejecting lay testimony
is harmless. Molina, 674 F.3d at 1121-22.
The ALJ gave “little weight” to the lay witness statements of plaintiff’s stepmother,
plaintiff’s stepbrother, and Charlotte S. Tr. 27. The ALJ found that “[m]ost of the issues they
describe are long-term issues that clearly did not preclude the claimant from working in the past

(for employers, such as Wal-Mart, other than [plaintiff’s] father).” Id. The ALJ’s reasons for
rejecting the lay-witness testimony are vague and not “specific.” Stout v. Comm’r, Soc. Sec.
Admin., 454 F.3d 1050, 1054 (9th Cir. 2006). It is not clear what “long-term issues” the ALJ
was referencing. Despite working for Wal-Mart in 2007, 2008, and 2009, the record reflects that
plaintiff was eventually fired due to his worsening ulcerative colitis because his trips to the
bathroom became too frequent. Tr. 51, 542.
The record also reflects that plaintiff’s mental impairments worsened over time. Notably,
in 2005, Dr. Cole diagnosed major depressive disorder and anxiety disorder, but in 2017, Dr.
Cole additionally diagnosed hoarding disorder and autism spectrum disorder, requiring

substantial support. Tr. 348, 561. Additionally, in 2005, Dr. Cole determined that plaintiff was
capable of managing his own finances, but in 2017 opined that plaintiff would need someone to
assist him in managing his funds. Tr. 349, 562. Charlotte S. corroborated plaintiff’s mental and
physical impairments worsened over the years. Tr. 297. Therefore, even if plaintiff had the
same impairments when he was working at Wal-Mart, the record reflects that those impairments
have worsened.
The ALJ also found that the lay witnesses “primarily describe[d] issues other than
ulcerative colitis as limiting [plaintiff’s] ability to work” but plaintiff “alleges that he is mainly
limited by that condition.” Tr. 27. However, the fact that plaintiff minimizes his mental
impairments is consistent with the lay witness testimony. The lay witnesses explained that
plaintiff has a tendency to overestimate his mental abilities, Tr. 300, 337, 341. Indeed,
plaintiff’s insight and judgment were repeatedly assessed as fair, suggesting that he is not well-
positioned to adequately assess his own mental deficits. Tr. 642, 675, 685, 698. Plaintiff has
acknowledged his mental limitations to some extent. Plaintiff admitted that he struggles to

independently keep his clothes and house clean. Tr. 279. He also reported that he was unable to
handle his own finances, that he is “socially inept,” and has “never really been able to socialize.”
Tr. 280-81. Moreover, while the lay witnesses may have “primarily described” plaintiff’s mental
impairments, they also explained that plaintiff’s ulcerative colitis has resulted in a lack of bowel
control, causing him to frequently use the bathroom or have accidents, and making it impossible
for him to travel and difficult to go to appointments. Tr. 294, 298, 336, 338-40.
Finally, the ALJ found that while plaintiff reported six bowel movements per day, that
was “highly inconsistent” with plaintiff’s stepbrother’s report that plaintiff goes to the bathroom
every “15 minutes or so.”4 Tr. 27, 336. As discussed above, the fact that plaintiff was having six

bowel movements per day does not mean that he was using the bathroom only six times per day.
In fact, the record reflects that his bathroom use was significantly more frequent. Moreover, the
stepbrother’s vivid and detailed report of plaintiff’s depression, mental impairments, lack of
judgment, and inability to care for himself was otherwise consistent with the record in this case.
Tr. 336-37. Thus, the ALJ erred in rejecting the testimony of the lay witnesses.

4 Plaintiff’s stepbrother also reported that plaintiff “usually stays in [the] bathroom 10-30 mins.”
Tr. 336.
IV. Remand
When a court determines the Commissioner erred in some respect in making a decision to
deny benefits, the court may affirm, modify, or reverse the Commissioner’s decision “with or
without remanding the cause for a rehearing.” Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d
1090, 1099 (9th Cir. 2014) (quoting 42 U.S.C. § 405(g)). In determining whether to remand for

further proceedings or immediate payment of benefits, the Ninth Circuit employs the “credit-as-
true” standard when the following requisites are met: (1) the ALJ has failed to provide legally
sufficient reasons for rejecting evidence, (2) the record has been fully developed and further
proceedings would serve no useful purpose, and (3) if the improperly discredited evidence were
credited as true, the ALJ would be required to find the plaintiff disabled on remand. Garrison,
759 F.3d at 1020. Even if all of the requisites are met, however, the court may still remand for
further proceedings, “when the record as a whole creates serious doubt as to whether the
claimant is, in fact, disabled[.]” Id. at 1021.
Here, the first requisite of the Garrison test is met. As discussed above, the ALJ

improperly discounted plaintiff’s subjective symptom testimony, erroneously assessed the
medical opinion of Dr. Cole, and improperly rejected the lay witness testimony of plaintiff’s
stepmother, plaintiff’s stepbrother, and Charlotte S.
Regarding the second factor, in assessing whether the record is fully developed, the court
looks to whether there are “significant factual conflicts in the record between [the claimant’s]
testimony and objective medical evidence.” Treichler, 775 F.3d at 1104 (emphasis added). The
Commissioner argues that significant factual questions remain because Dr. Maveety stated, in
2014, that there was no evidence of active colitis, Dr. Volpi concluded that plaintiff could work
with a special diet and restroom services, and plaintiff was able to work for his father and other
employers in the past. Def. Br. 18, ECF #18.
However, as discussed above, while Dr. Maveety noted that he could not find objective
evidence of active ulcerative colitis, a previous colonoscopy had shown active colitis. Tr. 598.
Additionally, plaintiff was still experiencing the symptoms of ulcerative colitis, Dr. Maveety

diagnosed plaintiff with it, and he continued to treat plaintiff for it. Tr. 419. Furthermore, within
the next two months, Dr. Selinger, Dr. Coleman, and Dr. Volpi all diagnosed plaintiff with
ulcerative colitis. Tr. 545, 574, 577. Later that year, Dr. Smith also diagnosed ulcerative colitis.
Tr. 587. The following year, Dr. Niskanen observed that the results of plaintiff’s colonoscopy
were consistent with ulcerative colitis, and both Dr. Moisa and Dr. Cohen diagnosed it. Tr. 572,
591, 595. Accordingly, notwithstanding Dr. Maveety’s 2014 treatment note, there was a clear
medical consensus that plaintiff was suffering from ulcerative colitis.
While Dr. Volpi opined that a special diet and restroom services would be necessary for
plaintiff to work, he did not go as far as to say such conditions would be sufficient. Tr. 598.

Furthermore, as previously explained, Dr. Volpi never prescribed or even recommended that
plaintiff implement the special diet on an ongoing basis, and plaintiff’s explanation of the diet
indicates that it would be unhealthy to do so.
Finally, with regard to plaintiff’s ability to work prior to the relevant period, the record
reflects that plaintiff’s physical and mental conditions subsequently declined. Indeed, as
previously noted, even though plaintiff was able to work for Wal-Mart, he was eventually let go
because he was using the bathroom too frequently. Tr. 542. With regard to working for his
father delivering newspapers, he only worked part-time and that job ended in 2002. Tr. 243,
336, 542. Thus, plaintiff’s ability to work prior to the relevant period does not present a
significant factual conflict.
As to the third requisite, if the discredited evidence were credited as true, the ALJ would
be required to find plaintiff disabled on remand because Dr. Cole determined that plaintiff would
be seriously limited in his ability to cope with changes in a routine work setting. Pursuant to

SSR 85-15,
[t]he basic mental demands of competitive, remunerative, unskilled work include
the abilities (on a sustained basis) to understand, carry out, and remember simple
instructions; to respond appropriately to supervision, coworkers, and usual work
situations; and to deal with changes in a routine work setting. A substantial loss
of ability to meet any of these basic work-related activities would severely limit
the potential occupational base. This, in turn, would justify a finding of
disability[.]

(emphasis added). Dr. Cole’s opinion is supported by the assessment of plaintiff’s therapist that
plaintiff had an “inflexible adherence to routines.” Tr. 682. Plaintiff and Charlotte S. also
reported that plaintiff could not handle changes in his routine “at all.” Tr. 282, 299. Therefore,
plaintiff’s “substantial loss of ability” to deal with changes in a routine work setting “justif[ies] a
finding of disability.” SSR 85-15.
Additionally, plaintiff’s bathroom needs resulting from his ulcerative colitis render him
disabled. The ALJ found that plaintiff would require ready access to a bathroom and three
unscheduled bathroom breaks of five minutes each. Tr. 19. The VE testified that three five-
minute breaks would not be disabling, but it was “edging very, very close to” being disabling.
Tr. 82. The VE explained that even if plaintiff was using the bathroom for a total of 20 to 25
minutes outside of scheduled breaks it would be “very difficult to maintain competitive
employment,” and if plaintiff was using the bathroom for 30 minutes outside of scheduled breaks
then competitive work would definitely be ruled out. Id. The record reflects that throughout the
relevant period, even when plaintiff’s colitis was well-controlled, he was having six bowel
movements per day. Tr. 418, 428, 431, 434, 437, 489, 493, 499, 502, 599, 602. Moreover, as
explained above, plaintiff was generally taking two trips to the bathroom for every bowel
movement to prevent accidents and because “he has problems differentiating whether or not he
has flatus or diarrhea.” Tr. 70, 72-73, 418, 428, 484, 542.

In sum, even when his colitis was managed, plaintiff still needed to use the bathroom
twelve times per day. During flare-ups, plaintiff would have up to twelve bowel movements per
day, which would require more than twelve trips to the bathroom. Tr. 413, 441, 574, 577.
Therefore, the record does not support the ALJ’s conclusion that three unscheduled bathroom
breaks would adequately account for plaintiff’s bathroom needs. Moreover, in addition to
underestimating the number of breaks that plaintiff would require, the ALJ appears to have
underestimated the length of the breaks. Plaintiff testified that he is in the bathroom so much
during the morning that by the time he is “semi-empty, pretty much half the day is gone.”
Tr. 73. This reflects that plaintiff’s bathroom breaks often last for significantly more than just

five minutes. Spending such a substantial amount of time in the bathroom, to the point that
“pretty much half the day is gone,” would clearly exceed the 20-30 minutes in the bathroom that
the VE testified would be disabling. Thus, plaintiff’s excessive bathroom breaks would preclude
competitive employment. Tr. 73, 82.
Because these arguments are dispositive of this matter, the court “decline[s] to reach
[plaintiff’s] alternative ground[s] for remand.”5 Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir.
2012).

5 Plaintiff additionally argues that the ALJ improperly performed the Listings analysis and
erroneously crafted the RFC to include limitations which would be considered accommodations
under the ADA.
Where each of the credit as true factors is met, only in “rare instances” does the record as
a whole leave “serious doubt as to whether the claimant is actually disabled.” Revels v.
Berryhill, 874 F.3d 648, 668 n.8 (9th Cir. 2017) (citing Garrison, 759 F.3d at 1021). This case is
not one of those “rare instances.”
CONCLUSION

For these reasons, the decision of the Commissioner is REVERSED and this matter is
REMANDED for the immediate calculation and payment of benefits.
DATED August 6, 2019.

/s/ Youlee Yim You
Youlee Yim You
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10391044. Public record. Not legal advice.