Howard v. Commissioner of Social Security

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2

3

4 UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

5 AT TACOMA

6

LESLIE H.,

Case No. 3:24-cv-05559-TLF

7 Plaintiff,

v. ORDER REVERSING AND

8 REMANDING DEFENDANT’S

ACTING COMMISSIONER OF SOCIAL DECISION TO DENY BENEFITS

9 SECURITY,

10 Defendant.

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12 Plaintiff filed this action pursuant to 42 U.S.C. § 405(g) for judicial review of

13 defendant’s denial of plaintiff’s application for disability insurance benefits (“DIB”).

14 Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and Local Rule

15 MJR 13, the parties have consented to the jurisdiction of a Magistrate Judge. Dkt. 4.

16 Plaintiff challenges the ALJ’s decision finding that plaintiff was not disabled. Dkt. 1,

17 Complaint.

18 On July 8, 2014, plaintiff filed an application for DIB alleging a disability onset

19 date of February 1, 2013. AR 208-09. The application was denied initially and upon

20 reconsideration. 105-07, 109-110. On September 12, 2016, a hearing was conducted by

21 ALJ Kimberly Boyce. AR 38-73. On November 7, 2016, ALJ Boyce issued an

22 unfavorable decision finding plaintiff not to be disabled. AR16-37. The Appeals Council

23 (“AC”) declined the request for review and plaintiff initiated a civil action. AR 2-7.

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1 On December 3, 2018, the Honorable David W. Christel issued an order affirming

2 the ALJ’s 2016 decision. 905-21. On appeal, the Ninth Circuit granted defendant’s

3 unopposed motion to vacate the judgment and remand. AR 904-06.

4 While the appeal was pending, on February 5, 2018, plaintiff filed a second

5 application for DIB alleging a disability onset date of November 8, 2016. AR 1273-74.

6 The second application was denied initially and upon reconsideration. AR 1176-1183,

7 1186-92. On July 9, 2019, a second hearing was held in front of ALJ Glenn G. Meyers.

8 AR 1039-74. On July 31, 2019, ALJ Meyers issued a partially favorable opinion, finding

9 plaintiff to be disabled since May 23, 2019 (plaintiff’s 55th birthday), but not before that

10 date. AR 854-83, The AC denied the request for review and plaintiff initiated a civil

11 action. AR 884-89. On September 21, 2021, the undersigned issued an order affirming

12 ALJ Meyers’ decision. AR 925-34. On appeal, the Ninth Circuit granted the parties’ joint

13 motion to vacate and remand. AR 922-24.

14 On May 16, 2023, a new hearing was held before ALJ Meyers on the issue of

15 disability prior to May 23, 2019. AR 752, 783-812. On March 13, 2024, ALJ Meyers

16 issued an opinion finding plaintiff not to be disabled prior to May 23, 2019. AR 748-82.

17 The AC declined the request for review and plaintiff filed this appeal.

18 The ALJ determined from July 31, 2013, through May 22, 2019, plaintiff had the

19 following severe impairments: osteoarthritis in bilateral hands; inflammatory bowel

20 disease; thyroid disorder; adult onset fluency disorder (stutter); depressive disorder;

21 anxiety disorder. AR 754. As a result, the ALJ found plaintiff had the residual functional

22 capacity (“RFC”) to perform light work as defined in 20 C.F.R. 404.1567(b) with the

23 following additional restrictions:

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1 frequent reaching, handling, and fingering; occasional stooping and crouching;

no crawling, kneeling, or climbing ramps, stairs, ropes, ladders, scaffolds;

2 occasional talking in the workplace; no work at heights or in proximity to

hazardous conditions; proximity to a bathroom at work; able to understand,

3 remember, and carry out simple instructions and tasks; able to use judgement to

make simple work-related decisions; can deal with only rare changes in the work

4 setting.

5 AR 758. The ALJ determined that plaintiff could perform the requirements of

6 representative occupations such as: Marker (light; unskilled SVP 2), DOT 209.587-034,

7 Cleaner, Housekeeping (light; unskilled SVP 2), DOT 323.687-014, Mail Clerk (light;

8 unskilled SVP 2), DOT 209.687-026, Router (light; unskilled SVP 2), 222.587-038, and

9 Routing Clerk (light; unskilled SVP 2), DOT 222.687-022. AR 773.

10 STANDARD

11 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's

12 denial of Social Security benefits if the ALJ's findings are based on legal error or not

13 supported by substantial evidence in the record as a whole. Revels v. Berryhill, 874

14 F.3d 648, 654 (9th Cir. 2017) (internal citations omitted). Substantial evidence is “‘such

15 relevant evidence as a reasonable mind might accept as adequate to support a

16 conclusion.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal citations

17 omitted). The Court must consider the administrative record as a whole. Garrison v.

18 Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). The Court also must weigh both the

19 evidence that supports and evidence that does not support the ALJ’s conclusion. Id.

20 The Court may not affirm the decision of the ALJ for a reason upon which the ALJ did

21 not rely. Id. Rather, only the reasons identified by the ALJ are considered in the scope

22 of the Court’s review. Id.

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1 DISCUSSION

2 1. Medical evidence

3 Plaintiff challenges the ALJ’s assessment of medical opinions of Dr. Mark

4 Heilbrunn, M.D., Dr. William L. Chalstrom, Ph.D., Mr. Eliyahu Andrew Stahl, L.Ac., Dr.

5 Anna Colombini, ND, and Dr. Corina B. Going. Dkt. 14 at 3-13.

6 a. Acceptable medical sources

7 Plaintiff filed their application[s] before March 27, 2017, therefore under the

8 applicable regulations, an ALJ must provide “clear and convincing” reasons to reject the

9 uncontradicted opinions of an examining doctor, and “specific and legitimate” reasons to

10 reject the contradicted opinions of an examining doctor. See Lester v. Chater, 81 F.3d

11 821, 830-31 (9th Cir. 1995). When a treating or examining physician's opinion is

12 contradicted, the opinion can be rejected “for specific and legitimate reasons that are

13 supported by substantial evidence in the record.” Id. (citing Andrews v. Shalala, 53 F.3d

14 1035, 1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)).

15 An examining physician’s opinion is “entitled to greater weight than the opinion of

16 a non-examining physician.” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (citations

17 omitted); see also 20 C.F.R. § 404.1527(c)(1) (“Generally, we give more weight to the

18 opinion of a source who has examined you than to the opinion of a source who has not

19 examined you”). A non-examining physician’s or psychologist’s opinion may not

20 constitute substantial evidence by itself sufficient to justify the rejection of an opinion by

21 an examining physician or psychologist. Lester, 81 F.3d at 831 (citations omitted). But

22 “it may constitute substantial evidence when it is consistent with other independent

23 evidence in the record.” Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001)

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1 (citing Magallanes, supra, 881 F.2d at 752). “In order to discount the opinion of an

2 examining physician in favor of the opinion of a non-examining medical advisor, the ALJ

3 must set forth specific, legitimate reasons that are supported by substantial evidence in

4 the record.” Nguyen v. Chater, 100 F.3d 1462, 1466 (9th Cir. 1996) (citing Lester, 81

5 F.3d at 831).

6 • Dr. Mark Heilbrunn, M.D., examining physician

7 On October 6, 2014, Dr. Heilbrunn completed a disability evaluation of plaintiff.

8 AR 427-32. He diagnosed her with history of hypothyroidism, increased fatigue, history

9 of irritable bowel syndrome, underweight, bilateral resting hand tremor, and minimal

10 bilateral hand osteoarthritis. AR 431. He opined that plaintiff has a lifting capacity of 11-

11 20 pounds frequently, the examination revealed no limitation in sitting, standing, or

12 walking, but she is limited in standing/walking due to fatigue and abdominal pain. AR

13 432. Dr. Heilbrunn stated that plaintiff rated abdominal pain as 5/10, and she had to use

14 the bathroom twice during the examination. AR 427, 429.

15 He opined normal hand coordination bilaterally, frequent to continuous handling,

16 fingering, feeling, pushing/pulling. Id. She could climb stairs and ramps, ladders, or

17 scaffolding on a frequent basis, no limitations in balancing, stooping, crouching,

18 kneeling, or crawling. Id. He opined no communicative, hearing, or corrective visual

19 limitations, no environmental limitations to humidity or wetness, she should not be

20 exposed to dust, odors, fumes, or extreme cold, no noise intolerances. Id. She could

21 tolerate exposure to unprotected heights and moving mechanical parts, she could

22 operate a moving vehicle. Id. She could perform activities of light shopping, individual

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1 travel, use public transportation, prepare specific food, feed herself, and care for

2 personal hygiene. Id.

3 Dr. Heilbrunn stated: “There are no specific physical impairments within the

4 examination. Her overall problems are abdominal pain, gastric distress, history of

5 hypothyroidism, and increased fatigue.” AR 432. He concluded by stating that

6 “claimant’s conditions will not necessarily impose limitations for 12 months continuous.”

7 AR 433. He recommended a psychological examination of plaintiff. Id.

8 The ALJ assigned some/partial weight to Dr. Heilbrunn’s opinion on the basis

9 that the examination findings were consistent with marginal limitations in sitting,

10 standing, walking, postural abilities, and manipulative limitations, but the ALJ gave no

11 weight to the vague assessment of limitations due to fatigue and abdominal pain. AR

12 767. The ALJ found this conclusion inconsistent with treatment records that show

13 plaintiff stopped most medication for her impairments approximate to her alleged onset

14 date and pursued alternative methods of treatment, after which she reported improved

15 fatigue and GI issues. AR 767. The ALJ stated plaintiff has maintained normal levels of

16 thyroid hormones with supplemental therapy, she has displayed a lack of tenderness in

17 her abdomen, and she has gained weight since Dr. Heilbrunn’s assessment. Id.

18 Plaintiff argues that the evidence cited by the ALJ does not show sustained

19 improvement and asserts that Dr. Heilbrunn’s clinical findings support plaintiff’s

20 testimony about the effects of her fatigue and irritable bowel syndrome. Plaintiff also

21 asserts the ALJ erred by not including symptoms and limitations from chronic fatigue

22 syndrome and did not provide reasoning for omitting chronic fatigue syndrome from the

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1 list of plaintiff’s severe impairments, even though a severe impairment of chronic fatigue

2 syndrome was included in the ALJ’s previous decision. Dkt. 14 at 4.

3 A finding that a medical opinion does not contain specific functional limitations or

4 is otherwise too vague to be useful in making a disability determination, can serve as a

5 legitimate reason for discounting that opinion. See Meanel v. Apfel, 172 F.3d 1111,

6 1114 (9th Cir. 1999) (holding that statement that the plaintiff would have “decreased

7 concentration skills” was too vague to be useful in the disability determination).

8 Here Dr. Heilbrunn opined “she is limited in all activities, including

9 standing/walking because of fatigue and abdominal pain.” AR 432. The ALJ did not err

10 in describing this limitation as vague -- Dr. Heilbrunn did not explain to what degree

11 these symptoms limited her activities. Moreover, Dr. Heilbrunn observed that plaintiff’s

12 conditions would not necessarily continuously cause limitations for 12 months, and this

13 is also a vague assessment. AR 433. Because it is a vague opinion, it is difficult to

14 assess whether it is contradicted by another physician’s opinion.

15 Plaintiff also argues that the ALJ erred in finding chronic fatigue syndrome (CFS)

16 to be a severe impairment in the previous decision but not in the current decision. Dkt.

17 14 at 3. Plaintiff does not argue that Dr. Heilbrunn diagnosed her with chronic fatigue

18 syndrome, but argues “in his previous decision, the ALJ found that [plaintiff] had the

19 severe impairment of chronic fatigue syndrome, but in his current decision, the ALJ

20 failed to accept that [plaintiff] has this impairment, and the ALJ did not explain why he

21 changed his finding on this issue.” Dkt. 14 at 4.

22 The ALJ explained that he determined CFS was not a medically determinable

23 impairment because the records did not contain the necessary criteria for a diagnosis

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1 for CFS as it has not been diagnosed by an acceptable medical source and treatment

2 record did not document the medical signs outlined in Social Security Ruling (SSR) 14-

3 1p. AR 755.

4 As SSR 14-1p explains, a finding that a person has a medically determinable

5 impairment (MDI) of CFS requires “a licensed physician diagnosed CFS, and this

6 diagnosis is not inconsistent with other evidence in the person’s case record.” The prior

7 decision in this case was vacated and remanded (on a stipulated motion of the parties)

8 by the Ninth Circuit Court of Appeals (AR 924) and plaintiff does not point to any

9 authority to support the contention that the ALJ erred by changing the decision on

10 whether chronic fatigue syndrome met the criteria for a medically determinable

11 impairment. See Marilyn P. v. Comm'r of Soc. Sec., C19-5703-MLP, 2021 WL 977713,

12 at *2 (W.D. Wash. Mar. 16, 2021), aff'd sub nom. Price v. Kijakazi, 21-35377, 2022 WL

13 1153930 (9th Cir. Apr. 19, 2022).

14 The ALJ had at least one valid reason – vagueness -- supported by substantial

15 evidence, to discount the opinion of Dr. Heilbrunn. Plaintiff has failed to show the ALJ

16 harmfully erred. See Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir.

17 2012) (citing Shinseki v. Sanders, 556 U.S. 396, 407–09 (2009)) (holding that the party

18 challenging an administrative decision bears the burden of proving harmful error).

19 • Dr. William L. Chalstrom, Ph.D., examining clinical psychologist

20 On October 2, 2014, Dr. Chalstrom conducted a psychological examination of

21 plaintiff, titled, “Psychological Memory Assessment”. AR 417-21. He completed a

22 medical source statement and concluded that plaintiff had an adjustment disorder with

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1 anxiety; plaintiff is capable of understanding, remembering, and carrying out both short

2 and simple instructions and more complex ones. AR 420-421.

3 Her concentration and memory were good, it appeared she would be able to get

4 along with others in a work situation. AR 421. He noted she has been feeling anxious

5 about work which exacerbates her sadness and tearfulness related to PMDD. Id. He

6 also noted that plaintiff indicated she would not be able to maintain attention and

7 concentration due to fatigue which is severe after three hours. Id.

8 The ALJ gave some/partial weight to this opinion but discredited plaintiff’s self-

9 reported inability to maintain attention and concentration due to her ongoing ability to

10 maintain memory and concentration required for at least unskilled and repetitive work.

11 AR 771.

12 Plaintiff argues that the ALJ erred in this conclusion because the assessment

13 supports plaintiff’s testimony about her limitations. Dkt. 14 at 5.

14 As discussed below, the ALJ properly discredited plaintiff’s statements regarding

15 her attention and concentration. The ALJ therefore did not err in discrediting the

16 portions of Dr. Chalstrom’s opinion that relied on this testimony.

17 b. Non-acceptable medical evidence

18 When evaluating opinions from non-acceptable medical sources such as a

19 therapist or a family member, an ALJ may expressly disregard such lay testimony if

20 the ALJ provides “reasons germane to each witness for doing so.” Turner v. Comm'r of

21 Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010) (quoting Lewis v. Apfel, 236 F.3d 503,

22 511 (9th Cir. 2001). And where an ALJ has provided clear and convincing reasons to

23 discount a claimant's testimony, those reasons are germane reasons for rejecting

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1 similar lay witness testimony. See Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685,

2 694 (9th Cir. 2009).

3 In rejecting non-acceptable medical testimony, the ALJ need not cite the specific

4 record as long as “arguably germane reasons” for dismissing the testimony are noted,

5 even though the ALJ does “not clearly link [their] determination to those reasons,” and

6 substantial evidence supports the ALJ’s decision. Lewis v. Apfel, 236 F.3d 503, 511 (9th

7 Cir. 2001). The ALJ also may “draw inferences logically flowing from the evidence.”

8 Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982).

9 • Mr. Eliyahu Andrew Stahl, L.Ac.

10 In an undated note, plaintiff’s acupuncturist stated that he treated plaintiff for

11 IBS/Gastro distress, fatigue, insomnia, premenstrual dysphoric DO, and depression, 41

12 times between 10/24/2013 and 8/4/2013, approximately once a week. AR 325. He

13 opined that her digestion has improved and at time her fatigue is reduced; she is

14 particularly labile and dysfunctional the two weeks before her menstrual cycle. Id. He

15 opined that based on this it would be very difficult for her to function in her normal job

16 capacity. Id.

17 The ALJ did not evaluate this opinion. Plaintiff argues that this was harmful legal

18 error. Dkt. 14 at 5. However, Mr. Stahl did not opine any functional limitations. Any error

19 in the failure to evaluate this opinion would be harmless. Stout v. v. Comm’r, Soc. Sec.

20 Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (An error that is inconsequential to the

21 non-disability determination is harmless).

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1 • Dr. Anna Colombini, ND, treating provider

2 Dr. Colombini1 wrote in an undated note that she treated plaintiff between August

3 5, 2013, and August 6, 2014. AR 374. She assessed that plaintiff could work no more

4 than 20 hours a week with a gradual increase in work duty due to being overwhelmed

5 and fatigued. Id. In July 2014, Dr. Colombini stated that plaintiff was unable to work due

6 to marked, and extreme, limitations from mental health conditions and symptoms. AR

7 2091-2093. She opined that plaintiff would be completely unable to work because of

8 extreme limitations regarding: ability to perform activities within a schedule, maintain

9 regular attendance, and be punctual within customary tolerances (AR 2089); ability to

10 complete a normal workday without interruptions from psychologically based symptoms,

11 ability to perform at a consistent pace with a standard number and length of rest

12 periods; and plaintiff would have four absences from work in an average month. AR

13 2090.

14 On April 20, 2015, she opined that plaintiff was unable to work based on her

15 diagnoses of fatigue, irritable bowel syndrome, gastrointestinal distress, and dysbiosis.

16 AR 466. She noted that the stress from work greatly affects progress made in her

17 health. Id.

18 On June 30, 2015, Dr. Colombini completed a residual functional capacity

19 questionnaire wherein she opined that plaintiff’s symptoms associated with her

20 impairments were “constantly” severe enough to interfere with the attention and

21 concentration required to perform simple work-related tasks. AR 475. She opined

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1 See RCW Chapter 18.36A, WAC 246-836-020, 246-836-110, concerning the qualifications needed under

24 Washington state law to obtain a license to practice as a naturopathic physician in Washington.

1 plaintiff would need to lie down or recline more frequently than typical breaks in an

2 eight-hour workday. Id. She could walk 10-12 city blocks and then needs to rest for one

3 to three hours, she could sit seven hours in an eight-hour workday and could stand/walk

4 for one hour. Id. Every 15-20 minutes she would need a 20-30-minute break one to two

5 times per day, she would need to sleep for one to three hours. Id. She opined plaintiff

6 can lift up to 20 pounds occasionally and could never lift 50 pounds. Id.

7 Dr. Colombini opined that plaintiff had significant limitations in reaching, five

8 percent of the day, and opined plaintiff could grasp, turn and twist for 20 percent of the

9 day and use fingers for fine manipulation 75 percent of the day. Id. She opined plaintiff

10 would be absent from work due to her impairments or treatments more than four times a

11 month. AR 476.

12 On July 13, 2016, she opined similar limitations. AR 616-17. On August 27, 2018,

13 she opined that plaintiff would be unable to perform more than 20 hours of work a week,

14 she would be unable to perform repetitive lifting of greater than 10-20 pounds, and she

15 was easily fatigued with repetitive physical activity that requires lifting or strenuous

16 physical activity. AR 1749.

17 The ALJ gave minimal weight to Dr. Colombini’s assessments because she did

18 not refer to any evidence to support her assessments and appears to have no

19 evidentiary basis for her assessments beside plaintiff’s own complaints, which the ALJ

20 discounted. AR 768. The ALJ also determined that the assessment was inconsistent

21 with the treatment record. AR 768.

22 Plaintiff argues that the ALJ failed to acknowledge that under SSR 06-3p, the

23 medical opinions of other source statements can sometimes be entitled to more weight

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1 than the opinions of acceptable medical sources, the ALJ failed to identify any medical

2 evidence that is inconsistent with the opinions, and the treatment records are consistent

3 with Dr. Colombini’s opinions regarding this level of severity. Dkt. 14 at 10-11.

4 Here, the ALJ considered the treatment record and found Dr. Colombini’s

5 evaluations from 2015 and 2016 were inconsistent with other medical evidence. AR

6 768. This is a germane reason, supported by substantial evidence, as to

7 musculoskeletal symptoms and limitations. Other evidence showed far less frequent or

8 severe symptoms and limitations, with respect to plaintiff’s knee, wrist, and back pain.

9 See, notes from physical therapy during January through September 2017 (showing her

10 musculoskeletal symptoms were improving with physical therapy exercise). AR 1475-

11 1506.

12 Evidence from Dr. Colombini concerning plaintiff’s symptoms and limitations

13 relating to irritable bowel syndrome was consistent with the medical records from

14 February through April 2013 concerning frequent diarrhea symptoms. AR 631-644, 688,

15 697, 710-713. The opinions of Dr. Colombini are consistent with other opinions

16 concerning gastrointestinal symptoms, e.g., Dr. Heilbrunn’s evaluation discussed above,

17 Dr. Going’s assessments of June 2015 and July 2016, AR 468-469, AR 626-627, and

18 Dr. Darren Schwartz, MD’s notes of an evaluation for gastrointestinal conditions on 7-

19 27-2017, AR 1953-1955, 2028 (documenting a 2017 examination, colonoscopy findings

20 on 8-31-2017, documenting diverticulitis and a polyp, and reviewing the records of

21 treatment starting in 2013 for colitis). Neither Dr. Platter’s assessment (AR 978-981) of

22 6-27-2018, nor Dr. Fitterer’s review (AR 996-999) of 9-26-2018, discuss IBS to any

23 extent, except for a statement that plaintiff would need more than routine breaks or

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1 access to a bathroom because of unpredictable symptoms of IBS, and these non-

2 examining physicians therefore did not provide opinions inconsistent with Dr.

3 Colombini’s opinions, regarding IBS.

4 The record does not show evidence regarding plaintiff’s gastrointestinal

5 symptoms and work-related limitations, for example symptoms such as explosive bowel

6 problems and fatigue due to IBS, that would contradict Dr. Colombini’s or Dr. Going’s

7 opinions. Therefore, the reasons for disregarding Dr. Colombini’s opinions regarding

8 irritable bowel syndrome were not arguably germane.

9 • Dr. Corina B. Going, ND, treating provider.

10 On June 24, 2015, Dr. Going completed a residual functional capacity

11 questionnaire and opined that plaintiff’s chronic fatigue and related symptoms would be

12 constantly severe enough to interfere with attention and concentration required to

13 perform simple work-related tasks. AR 468. She opined plaintiff would need to lie down

14 or recline in excess of typical breaks during a typical workday. Id. She opined plaintiff

15 could walk 10-12 city blocks, she could sit two hours in an eight-hour workday and could

16 stand/walk one hour. Id. She opined plaintiff would need to take unscheduled breaks

17 every day for one to three hours. Id. She could occasionally lift up to 20 pounds, could

18 never lift 50 pounds. Id. She would be absent from work because of her impairments or

19 treatments more than four times a month. AR 469.

20 On July 25, 2016, Dr. Going completed a second residual functional capacity

21 questionnaire and opined that plaintiff’s irritable bowel syndrome, and chronic fatigue,

22 would constantly be severe enough to interfere with the attention and concentration

23 required to perform simple work-related tasks. AR 626. She would need to recline or lay

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1 down more frequently than typical breaks; she could walk 10 city blocks once per day

2 without rest or significant pain; she could occasionally lift up to 20 pounds, could never

3 lift 50 pounds. AR 626-627. She would be absent more than four times a month due to

4 her impairments. AR 627.

5 In progress notes dated 7-19 and 7-25-2016, Dr. Going stated that plaintiff had

6 been vomiting one to two times each week, and experienced explosive diarrhea

7 episodes up to 15 times per day. AR 619. This caused her to feel extremely fatigued.

8 AR 619-620.

9 On March 6, 2018, Dr. Going completed a third residual functional capacity

10 questionnaire and opined plaintiff could walk three city blocks without rest or significant

11 pain; she can sit four hours and stand/walk one hour in an eight-hour workday. AR

12 1653. She would need to take unscheduled breaks every 15-30 minutes for between ten

13 minutes and two hours. Id. She could occasionally lift 10 pounds; she could grasp, turn,

14 and twist objects with her hands 10 percent of the time, fine manipulation of her fingers

15 20 percent of the time, reaching with her arms 20 percent of the time. Id. She would be

16 absent more than four times a month due to her impairments. AR 1654. Dr. Going

17 assessed that plaintiff’s symptoms would frequently be severe enough to interfere with

18 attention and concentration that is required to perform simple work-related tasks. AR

19 1653.

20 Progress notes from Dr. Going document that in 2017, plaintiff’s vomiting and

21 diarrhea symptoms improved. AR 1632-1643.

22 The ALJ gave minimal weight to Dr. Going’s assessments except as to the

23 manipulative limitations and the ability to lift 20 pounds. AR 768. The ALJ discounted

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1 her opinion as being from a non-acceptable medical source and noted that she did not

2 refer to any evidence to support her assessments, her treatment records did not include

3 any examination findings, the opinion was inconsistent with plaintiff’s examination

4 findings since her onset date, as well as her conservative course of treatment. AR 768.

5 As with the evidence from Ms. Colombini, other evidence showed far less

6 frequent or severe symptoms and limitations as to the musculoskeletal conditions, than

7 those opined by Dr. Going. For example, notes from physical therapy during January

8 through September 2017 show her back, wrist, and knee pain symptoms were

9 improving with physical therapy exercise. AR 1475-1506. In rejecting non-acceptable

10 medical testimony, the ALJ need not cite the specific record as long as “arguably

11 germane reasons” for dismissing the testimony are noted, even though the ALJ does

12 “not clearly link his determination to those reasons,” and substantial evidence supports

13 the ALJ’s decision. Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001).

14 The reasons given in this case for discounting Ms. Going’s opinions about knee,

15 wrist, and back pain were arguably germane, and are supported by substantial

16 evidence.

17 The record does not show evidence regarding plaintiff’s gastrointestinal

18 symptoms, and fatigue associated with IBS, that would contradict Dr. Colombini’s or Dr.

19 Going’s opinions. Therefore, the ALJ erred because the reasons were not arguably

20 germane, and were not supported by substantial evidence, as to the irritable bowel

21 syndrome and fatigue connected with that condition.

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1 c. Plaintiff’s statements regarding symptoms and limitations

2 Plaintiff challenges the ALJ’s assessment of her testimony. Dkt. 14 at 13-16.

3 The ALJ’s determinations regarding a claimant’s statements about limitations

4 “must be supported by specific, cogent reasons.” Reddick v. Chater, 157 F.3d 715, 722

5 (9th Cir. 1998) (citing Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990)). In

6 assessing a Plaintiff’s credibility, the ALJ must determine whether Plaintiff has

7 presented objective medical evidence of an underlying impairment. If such evidence is

8 present and there is no evidence of malingering, the ALJ can only reject plaintiff’s

9 testimony regarding the severity of his symptoms for specific, clear, and convincing

10 reasons. Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citing Lingenfelter v.

11 Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)). An ALJ may reject a claimant's symptom

12 testimony when it is contradicted by the medical evidence. See Carmickle v. Comm'r,

13 Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) (citing Johnson v. Shalala, 60

14 F.3d 1428, 1434 (9th Cir. 1995)). The Court's job is not to reconsider the evidence, but

15 to determine whether the ALJ’s interpretation of that evidence was

16 reasonable. See Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (“Where the

17 evidence is susceptible to more than one rational interpretation, one of which supports

18 the ALJ’s decision, the ALJ’s conclusion must be upheld.”).

19 Plaintiff testified at three hearings – September 12, 2016 (AR 47-67), July 9,

20 2019 (AR 1045-1065), and May 16, 2023 (AR 791-804). As to the period in question for

21 the current appeal, July 31, 2013, through May 22, 2019, the ALJ observed that

22 plaintiff’s testimony from the first two hearings would be closer-in-time to the relevant

23 period, and she had stated during the 2023 hearing that her memory for what had

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1 happened in the past was somewhat impaired. AR 759. In the 2023 hearing, plaintiff

2 testified that her conditions had impacted her memory and she tends to be forgetful, get

3 confused, and repeat questions. AR 793.

4 The ALJ discussed the testimony and statements made by plaintiff. AR 758-765.

5 Plaintiff testified she first stopped working because she was having a lot of diarrhea,

6 losing weight, sleeping a lot, tired a lot, having trouble focusing, and a lot of issues with

7 pain. AR 53, 63, 792. She could stand 15-30 minutes at any one time before she would

8 need to get off her feet. AR 57. Plaintiff stated that she could sit for 30-60 minutes at a

9 time before she would need to get up and take a break; the break would be 15-20

10 minutes but sometimes two to three hours. AR 58.

11 During the July 2019 hearing, plaintiff stated that she could walk a mile and a

12 half, but not consistently. AR 1050. She testified that her hands were shaking because

13 she had central tremors, and that she had a stutter (that started in July 2018) every day;

14 she said the stutter became worse when the tremors are bad and when she felt tired.

15 AR 1052-1053. Tremors prevented her from being able to type on a keyboard. AR 1064.

16 When asked by her attorney whether she would be able to sustain a job for eight-hours

17 per day and a full five-day work week, she said that would not be possible. AR 1062-

18 1063.

19 Plaintiff testified that she needed to lay down for four two six hours during the

20 daytime. AR 58. She could lift about 10 pounds. AR 58. She stated that in February

21 through April of 2013, she was given an IBS diagnosis, which explained the

22 gastrointestinal issues, and because of the IBS she lost a lot of weight. AR 60-61, 67.

23

24

1 She testified that she attempted to go back to work in January 2014, also August

2 through October 2014, and although accommodations were provided such as an office

3 closer to home, less job duties, and driving to work with a friend, she was forgetting

4 passwords and calling the help desk daily, she was tired or having chronic diarrhea or

5 vomiting within a few hours of going to work, and she was having trouble staying awake.

6 AR 65-66, 794. She tried to go back one more time after this period but was unable to

7 complete a single full-time eight-hour day. AR 795.

8 When cooking, she would have trouble following simple recipes and would leave

9 burners on. AR 796. In 2015 she was spending 15-20 hours a day in bed and later she

10 could go without napping but could not be productive for a full day without getting

11 fatigued. AR 796-97. She experienced joint pain that is worse with exercise, she had

12 tremors in her hands that made it hard to write, grip, use a computer, and caused her to

13 drop things. AR 797-98. She experienced depression about her situation which was

14 helped by counseling. AR 798. She could do some housework like vacuuming and

15 laundry but needed to take breaks but her brother or husband would carry the vacuum

16 up the stairs for her. Id. She would have to rest for 15-20 minutes while vacuuming. AR

17 799.

18 She stated that needing to use the restroom has at times, been a daily problem

19 and there were times she could not make it to the restroom. Id. She testified that food

20 would go through her, sometimes she had diarrhea up to 15 times a day. Id. She had

21 trouble pouring water for herself due to tremors. AR 800. She testified that her

22 conditions have improved since onset, but they fluctuated, and there were days her

23 symptoms were worse than others. AR 801.

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1 The ALJ found that the medically determinable impairments could reasonably be

2 expected to produce the alleged symptoms, however statements concerning the

3 intensity, persistence, and limiting effects of these symptoms were not entirely

4 consistent with the medical evidence and other evidence in the record. AR 759.

5 The ALJ found that the medical record reflected minimal gastrointestinal (GI)

6 issues, there was partial improvement in these symptoms, she ceased medication for

7 these issues but gained weight, and recent treatment records contradict her testimony.

8 AR 760.

9 As to her hand osteoarthritis he determined that even with minimal treatment,

10 she displayed normal functioning in her hands and joints. AR 761. He determined that

11 the records document stable and generally normal levels of thyroid hormones. Id.

12 The ALJ summarized the record and concluded that plaintiff’s other physical

13 limitations were inconsistent with normal examinations and objective findings. AR 761-

14 62. As to plaintiff’s mental limitations, the ALJ determined that plaintiff had a history of

15 anxiety and depression but her reports of severe mental limitations were inconsistent

16 with her examination findings, her lack of psychiatric care, and her mental health

17 counseling. AR 762.

18 Plaintiff raises several arguments related to chronic fatigue syndrome and states

19 that the ALJ erred in failing to assess this condition under SSR 14-1p. Dkt. 14 at 14-16.

20 But as discussed above, plaintiff does not point to any evidence that establishes that

21 plaintiff’s CFS was an MDI (this fatigue is to be distinguished from the more general

22 allegations of fatigue that are alleged to have been connect to IBS). Therefore, these

23 arguments fail to establish error.

24

1 The ALJ also provided a clear and convincing reason regarding the post-2016

2 portion of the relevant period for discounting plaintiff’s testimony based on contradiction

3 with the medical record as to IBS and related fatigue. “Contradiction with the medical

4 record is a sufficient basis for rejecting the claimant’s subjective testimony.” Carmickle

5 v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) (citing Johnson v.

6 Shalala, 60 F.3d 1428, 1434 (9th Cir.1995)). But an ALJ may not reject a claimant’s

7 subjective symptom testimony “solely on a lack of objective medical evidence to fully

8 corroborate the alleged severity of pain.” Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir.

9 1991); Byrnes v. Shalala, 60 F.3d 639, 641-42 (9th Cir. 1995) (applying rule to

10 subjective complaints other than pain).

11 Treatment records cannot be cherry-picked; the ALJ must consider a particular

12 record of treatment in light of the overall diagnostic record. Ghanim v. Colvin, 763 F.3d

13 at 1164. The ALJ is required to show their work and make findings to allow the

14 reviewing court to determine the ALJ did not “arbitrarily discredit” plaintiff’s testimony.

15 See Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022).

16 The ALJ also found that plaintiff’s treatment was inconsistent with her allegations

17 of symptoms and limitations from disabling impairments. ALJ Meyers cited (AR 760,

18 763-765) evidence of plaintiff’s naturopathic care appointments that showed notation of

19 improvements in symptoms of physical and mental health conditions with conservative

20 treatment such as acupuncture, dietary supplements, and changes in diet. E.g., AR 325,

21 362, 530-549, 613-614, 1687, 1757, 1909, 1953-1958, 1970, 2007. The Court reviews

22 the agency’s decision as a whole, rather than parsing particular paragraphs or pages

23 without context. Kaufmann v. Kijakazi, 32 F.4th 843, 851 (9th Cir. 2022). There is

24

1 substantial evidence, and the ALJ provided clear and convincing reasons, to support the

2 ALJ’s finding that plaintiff’s treatment was conservative, as to physical and mental

3 health symptoms and limitations other than IBS for the entire relevant period; and for

4 IBS related symptoms and limitations for the post-2016 portion of the relevant period.

5 Regarding plaintiff’s symptoms and limitations concerning IBS, and fatigue

6 connected to IBS, the ALJ’s reasons are not clear and convincing, or supported by

7 substantial evidence as to the time between the alleged onset date and the period

8 starting in early 2017. It appears that plaintiff’s statements about her condition during

9 that 2013-2016 period are consistent with the medical record; her treatment for IBS,

10 while it was not surgical or traditional medicine, was constantly monitored by Dr.

11 Colombini and Dr. Going, and persistently pursued by plaintiff during that time.

12 The ALJ’s decision shows a distrust of the non-traditional medical doctors’

13 assessments, and the record reflects the ALJ rejected some of plaintiff’s statements

14 because she pursued the non-traditional medical treatments. AR 759 (“During the

15 relevant period, she ceased medication for GI impairments and pursued alternative

16 treatment.”); AR 764 (ALJ notes that plaintiff did not see specialists for her

17 gastrointestinal conditions, and “[s]he was seeing a naturopath for her allegedly

18 disabling symptoms.”); AR 767-768 (assessing the opinions of the naturopathic doctors

19 and using the prefix “Ms.” Rather than the title of “Dr.”, despite licensing requirements

20 under Washington law that establish these are physicians with a separate licensure-

21 qualifying process). This is not a clear and convincing reason to discount plaintiff’s

22 statements. See, Putz v. Astrue, 371 Fed. Appx. 801, 802 - 803 (9th Cir. 2010)

23 (unpublished) (ALJ’s reasoning, giving little or no weight to the opinions of a naturopath

24

1 because the doctor did not rely on traditional medicine, was not a germane reason and

2 was not supported by substantial evidence); Kimberly M. v. Commissioner, No. 3:23-cv-

3 00985-HZ, 2024 WL 1928777, at *12 (D. Oregon, May 2, 2024) (“It is not clear and

4 convincing to discount a claimant’s subjective testimony simply because the claimant

5 follows a course of treatment that does not fully conform to conventional Western

6 standards”).

7 Plaintiff also argues the ALJ erred by relying on plaintiff’s daily activities as a

8 reason for discounting her statements. The ALJ pointed to instances of plaintiff being

9 able to prepare meals and handle chores, doing well in physical therapy, housesitting

10 for friends, gardening, driving into town, and spending time at a beach in 2018. AR 765.

11 While these moderate activities would potentially be inconsistent with plaintiff’s

12 allegations of severe mental health conditions or musculoskeletal physical symptoms

13 and limitations (other than IBS), they would not necessarily be inconsistent with the IBS

14 symptoms. These activities are not of the frequency or intensity that would be

15 demanded of plaintiff if she worked eight-hours per day and five days per week in

16 competitive employment. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). Plaintiff’s

17 credibility should not be discounted for her efforts to maintain somewhat of a normal life,

18 despite the symptoms of her conditions. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.

19 1998).

20 Plaintiff also asserts the ALJ erred by finding that plaintiff’s statements about her

21 symptoms and limitations were inconsistent over the relevant period. See AR 765-766

22 (ALJ observes plaintiff made statements in 2017-2019 about fatigue and digestive

23 health that were different from earlier reports). Yet, as plaintiff points out, the IBS and

24

1 fatigue symptoms and limitations changed over time, and therefore her statements

2 cannot be expected to be precisely the same each time she testified, or had medical

3 appointments. Therefore, there is not substantial evidence to support this finding by the

4 ALJ.

5 d. Lay witness evidence

6 Plaintiff challenges the ALJ’s assessment of several lay witness statements. Dkt.

7 14 at 16-17.

8 When evaluating opinions from non-acceptable medical sources such as a

9 therapist or a family member, an ALJ may expressly disregard such lay testimony if

10 the ALJ provides “reasons germane to each witness for doing so.” Turner v. Comm'r of

11 Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010) (quoting Lewis v. Apfel, 236 F.3d 503,

12 511 (9th Cir. 2001). And where an ALJ has provided clear and convincing reasons to

13 discount a claimant's testimony, those reasons are germane reasons for rejecting

14 similar lay witness testimony. See Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685,

15 694 (9th Cir. 2009). In rejecting lay testimony, the ALJ need not cite the specific record

16 as long as “arguably germane reasons” for dismissing the testimony are noted, even

17 though the ALJ does “not clearly link his determination to those reasons,” and

18 substantial evidence supports the ALJ’s decision. Lewis v. Apfel, 236 F.3d 503, 511 (9th

19 Cir. 2001). The ALJ also may “draw inferences logically flowing from the evidence.”

20 Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982).

21 Although plaintiff lists several lay witness statements that she argues the ALJ

22 erred in evaluating, she only provides an argument as to the opinion of her friend, Alison

23 Reames. Dkt. 14 at 16-17.

24

1 Here, the statements of Ms. Reames dated 8-7-2014 relate to plaintiff’s daily

2 activities, her mental health, and echo plaintiff’s own statements, pertaining to fatigue

3 and mental health issues. See AR 245-46, 1335-42. As discussed above, the ALJ

4 provided a valid reason for discounting plaintiff’s testimony with respect to mental health

5 issues and physical conditions (other than IBS). Accordingly, the ALJ did not err.

6 See Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009).

7 e. Harmless error

8 An error that is inconsequential to the non-disability determination is harmless.

9 Stout v. v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006)). If the errors

10 of the ALJ result in a residual functional capacity (RFC) that does not include relevant

11 work-related limitations, the RFC is deficient, and the error is not harmless. Id; see also,

12 Carmickle v. Comm’r. Spc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008); Embrey

13 v. Bowen, 849 F.2d 418, 422-423 (9th Cir. 1988); Stramol-Spirz v. Saul, 848 Fed. Appx.

14 715, 718 (9th Cir. 2021) (unpublished).

15 The ALJ only included one limitation in the RFC – proximity to a bathroom at

16 work -- that would pertain to Dr. Colombini’s and Dr. Going’s opinions about IBS

17 diagnosis and work-related limitations associated with IBS such as unpredictable,

18 frequent, explosive bowel occurrences and fatigue connected to IBS. Because the ALJ

19 did not provide a germane reason for discounting Dr. Colombini’s assessment or Dr.

20 Going’s assessment concerning symptoms and limitations of IBS in particular, between

21 the alleged date of onset and the early part of 2017 before there was a documented

22 showing of improvement, there is not a limitation pertaining to IBS symptoms -- other

23 than being in proximity to a bathroom. The error cannot be considered harmless. These

24

1 medical provider opinions – and plaintiff’s statements about symptoms and limitations

2 relating to fatigue, distress, and explosiveness of the IBS symptoms -- were not properly

3 evaluated by the ALJ, nor were appropriate limitations relating to IBS included in the

4 RFC. Therefore, this case must be reversed and remanded.

5 CONCLUSION

6 Thus, the Court concludes the ALJ improperly determined plaintiff to be not

7 disabled. Therefore, the ALJ’s decision is reversed and remanded. Under Leon v.

8 Berryhill, 880 F.3d 1041, 1047 (9th Cir. 2017), the Court must consider whether there

9 are gaps or ambiguities in the record. There is ambiguity in the record for the defendant

10 to determine the date when plaintiff’s IBS symptoms and limitations improved, and for

11 the ALJ to present a hypothetical to a vocational expert that includes relevant limitations

12 for the period before the improvement in plaintiff’s IBS symptoms and limitations

13 occurred.

14 Therefore, this case is remanded for consideration of the IBS symptoms and

15 limitations. The Commissioner may hold a new hearing and is ordered to re-evaluate

16 the opinions of Dr. Colombini and Dr. Going, and also re-evaluate the statements of

17 plaintiff regarding IBS symptoms and limitations. Plaintiff shall be offered the opportunity

18 to present any additional evidence regarding IBS symptoms and limitations for the

19 relevant period.

20 Dated this 15th day of August, 2025.

A

21

Theresa L. Fricke

22

United States Magistrate Judge

23

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