United States District Court, W.D. Washington, Seattle
ORDER REVERSING THE COMMISSIONER AND REMANDING FOR
A. TSUCHIDA CHIEF UNITED STATES MAGISTRATE JUDGE.
appeals the ALJ's decision finding him not disabled. He
contends the ALJ misevaluated his testimony and the opinions
of Sage Garber, LMHCA, Sylvia LaCourse, M.D., Melanie
Mitchell, Psy.D, and Phyliss. Sanchez, Ph.D. As discussed
below, the Court REVERSES the
Commissioner's final decision and
REMANDS the matter for further
administrative proceedings under sentence four of 42 U.S.C.
contends the ALJ erroneously rejected his testimony he has
difficulty standing or walking due to shortness of breath;
his pain, chronic anxiety and fatigue impair his
concentration and persistence; and that his “chronic
diarrhea impacts his ability to remain in task.” Dkt.
10 at 4. The ALJ found plaintiff's testimony about the
severity of his diarrhea and fatigue was inconsistent with
the medical record showing plaintiff's HIV is
asymptomatic. Tr. 33. Plaintiff argues the fact his HIV is
asymptomatic is irrelevant because his HIV is unrelated to
his diarrhea and fatigue, and thus not evidence that
undermines his testimony. The Court cannot accept the
argument. Whether diarrhea and shortness of breath are
directly related to HIV does not alter the fact that the
medical record diverges from plaintiff's testimony. As
the ALJ correctly noted, the record shows plaintiff has had
diarrhea and shortness of breath, but that it is not as
severe as he claims. Plaintiff has not shown the ALJ
inaccurately described the medical record, and the ALJ thus
may reasonably rely on the discrepancy between the record and
plaintiff's testimony. The Court notes in 2015 examining
doctor Sylvia LaCourse, M.D., discussed plaintiff's HIV
in performing a psychiatric evaluation. Dr. LaCourse did not
specifically find in her evaluation that plaintiff could not
work due to fatigue or diarrhea. Tr. 647-52. In 2017, Dr.
LaCourse wrote a letter noting plaintiff's HIV, that
blisters on his buttocks “limit his activities of daily
living, ” and that plaintiff's mental health
problems limit his ability to finish tasks, concentrate and
persist. The doctor, however, made no mention of fatigue or
diarrhea as conditions impairing plaintiff's ability to
perform work. Tr. 1238. The Court accordingly concludes the
ALJ did not err in rejecting plaintiff's testimony about
diarrhea and fatigue.
also rejected plaintiff's testimony about shortness of
breath, as inconsistent with plaintiff's medical records.
Tr. 33-34. Plaintiff contends the ALJ's reliance on
normal EKG test results is erroneous because they are
“not relevant to his allegations about shortness of
breath.” Dkt. 10 at 6. The argument overlooks the
ALJ's finding that plaintiff's pulmonary functioning
and physical test results indicated no significant
respiratory deficits, Tr. 34, and that plaintiff testified
“walking hills in Seattle is about as much exercise and
I've been able to get.” Tr. 97. Hence putting the
EKG test results aside, there is medical evidence that is
inconsistent with plaintiff's claims of disabling
shortness of breath. The Court accordingly affirms the
rejected plaintiff's testimony that his mental
impairments limited his social functioning. The ALJ found
plaintiff presented in a pleasant and largely normal manner
at his medical appointments, could hang out with other people
at the hostel in which he lived, walked in the Gay Pride
parade, tried to write a book, do photography and spend time
with friends. Tr. 34-35. The ALJ erred. While plaintiff
indicated he tends to isolate himself, he never claimed he
could not socialize. Rather he testified he has been able to
maintain friendships for decades, Tr. 94. He also told
Melanie Mitchell, Psy.D. he enjoys counseling. Tr. 524. Hence
the activities the ALJ noted above do not contradict
plaintiff's mental limitations as to social contact.
Additionally, the ALJ did not provide a clear and convincing
explanation of how plaintiff's activities contradict
plaintiff's PTSD symptoms. These symptoms as Dr. Mitchell
noted, can affect plaintiff's ability to perform work
because when triggered, and cause plaintiff to become
fearful, avoidant, detached, among other things.
further discounted plaintiff's testimony because he
looked for work in 2014 and received unemployment benefits.
Seeking employment is not necessarily a basis to discredit a
claimant's testimony. See Webb v. Barnhart, 433
F.3d 683, 687-88 (9th Cir.2005) (reversing ALJ's
determination that an impairment was not severe where the ALJ
had relied in part on the claimant's seeking of
employment). Additionally, the record shows plaintiff earned
$669.56 in 2014. Tr. 393. This indicates a failed attempt to
work rather than an ability to work that is inconsistent with
plaintiff's receipt of unemployment benefits, the ALJ
acknowledges receipt of such benefits does not preclude
disability but is a factor to consider. Tr. 35. The ALJ found
that under the Revised Code of Washington (RCW), a person
receiving unemployment benefits must be willing and able to
accept suitable work and be actively seeking work. Tr. 35.
The ALJ reasoned that plaintiff therefore must have certified
he was able to work to obtain unemployment benefits and that
this certification undermines the testimony he gave about the
severity of his symptoms.
receipt of unemployment benefits undermines a claimant's
testimony only where there is evidence of record that
establishes the claimant held himself out as available for
full-time work. Carmickle v. Comm'r of Soc. Sec.
Admin., 533 F.3d 1155, 1162 (9th Cir. 2008); see
also Ipaye v. Colvin¸ 2015 WL 3644005 at * 6 (C.D.
Cal. June 10, 2015)(Here, although the record contains
evidence that plaintiff received unemployment benefits after
the alleged onset date, the record does not establish whether
plaintiff claimed he was available for full-time or part-time
work.”); Wood v. Colvin, 2014 WL 4407719, at
*9 (E.D. Wash. Sept.8, 2014) (Claimant's receipt of
unemployment benefits was not clear and convincing reason for
ALJ's adverse credibility determination where record
contained no certification by claimant that he was physically
and mentally able to work full-time).
the record does not contain any documentation supporting the
ALJ's finding. There are no certifications or other
records indicating whether plaintiff held himself out as
available for full time work or not. Substantial evidence
therefore does not support the ALJ's finding.
contends the ALJ misevaluated the opinions of Melanie
Mitchell, Psy.D., Sylvia LaCourse, M.D., Phyllis Sanchez,
Ph.D., and Sage Garber, LMHCA. In cases filed before March
27, 2017, more weight should be given to the opinions of
treating and examining doctors than to the opinions of
doctors who do not treat the claimant. Lester v.
Chater, 81 F.3d 821, 830 (9th Cir. 1995); see
20 C.F.R. § 404.1527(c)(2); SSR 96-2p. Here the ALJ
favored the opinions of non-examining psychologists examining
doctors and other sources. The Court thus examines whether
the opinions of Drs. LaCourse, Mitchell and Sanchez were
rejected for specific and legitimate reasons that are
supported by substantial evidence, Lester, 81 F.3d
at 830; and whether the non-examining opinion of Dr. Petaja
was discounted with reference to specific evidence in the
medical record, Sousa v. Callahan, 143 F.3d 1240,
1244 (9th Cir. 1998). “The opinion of a nonexamining
physician cannot by itself constitute substantial
evidence that justifies the rejection of the opinion of . . .
an examining physician . . . .” Lester, 81
F.3d at 830 (emphasis added).
Court must also examine whether the ALJ gave germane reasons
to reject the opinions of Ms. Garber, an other source.
Dodrill v. ...