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Erick T v. Commissioner of Social Security

United States District Court, W.D. Washington, Seattle

July 10, 2019

Erick T., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER REVERSING THE COMMISSIONER AND REMANDING FOR FURTHER PROCEEDINGS

          BRIAN A. TSUCHIDA CHIEF UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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. § 405(g).

         DISCUSSION

         A. Plaintiff's Testimony

         Plaintiff 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.

         The ALJ 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 ALJ's determination.

         The ALJ 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.

         The ALJ 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 testimony.

         As to 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.

         The 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).

         Here, 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.

         B. Medical Evidence

         Plaintiff 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).

         The Court must also examine whether the ALJ gave germane reasons to reject the opinions of Ms. Garber, an other source. Dodrill v. ...


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