IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

DANA L. MERRITT, 

Plaintiff, 

v. 

COMMISSIONER OF SOCIAL SECURITY, 

Defendant. 

MARK D. CLARKE, Magistrate Judge. 

Civ. No. 6: 16-cv-00244-CL 

OPINION & ORDER 

Plaintiff Dana L. Merritt seeks judicial review under 42 U.S.C. § 405(g) of the final 

decision of the Commissioner of the Social Security Administration denying her application for 

Disability Insurance Benefits pursuant to the Social Security Act. For the reasons below, the 

Commissioner's decision is REVERSED and REMANDED for immediate payment ofbenefits. 1 

BACKGROUND 

Plaintiff was born in 1960 and was 51 years old on April 1, 2012, when she alleges her 

disability began. Tr. 148. She worked for 23 years as a legal assistant and as a bookkeeper. Tr. 

42, 68. Plaintiff is married, and has one adult child, for whom she is not a caretaker. Tr. 149. 

185. 

1

The parties have consented to Magistrate Judge jurisdiction over this action pursuant to 28 U .S.C. § 636( c)( I). 

Page 1 - OPINION & ORDER 
In February, 2011, Plaintiff was examined by David Grunkemeier, M.D., a 

gastroenterologist, for complicated irritable bowel syndrome. Tr. 331. Plaintiff reported a 

history of 10 to 15 or possibly 20 bowel movements per day. She had a history of anal fistula. 

surgically treated with a fistulotomy in 2007. Dr. Grunkemeier was concerned that she had 

Crohn's disease, possibly complicated by superimposed functional bowel disorder, or choleretic 

diarrhea. Tr. 334. He ordered a colonoscopy, which was suspicious for possible colonic Crohn · s 

disease. Tr. 336. On the same date, a CT of the small bowel revealed mid-abdominal jejuna! 

loop with much bowel wall thickening, most consistent with inflammatory bowel disease, and 

some thickening of the rectosigmoid area. Tr. 330. That spring, 2011, Dr. Grunkemeier 

diagnosed inflammatory bowel disease, Crohn's, most likely jejuna! ileitis. Tr. 327. He 

prescribed Entocort with a three-month taper. Tr. 329. 

Two months later, Ms. Merritt reported feeling quite fatigued and having abdominal 

bloating. Tr. 261. She had nausea, was thirsty all the time, and had a poor appetite. Id. Stephanie 

Riccalarsen, M.D., the primary care physician, thought that her fatigue may be due to Crohn's 

disease, or possibly the medications she was taking to treat it. Tr. 258. 

In July, 2011, Ms. Merritt was doing much better. Tr. 309. Rifaximin gave her the best 

relief of her day-to-day symptoms, "though duration of effect lasts only about two weeks." Id. 

Dr. Grunkemeier's treatment notes indicate that she was feeling "better than the symptoms that 

she had when we first diagnosed her, but [she] is still not in remission." Id. Dr. Grunkemeier 

increased the Entocort dosage and prescribed a trial of Rifaximin, one tablet every other day for 

prolonged effect, and also prescribed mercaptopurine. Tr. 311. 

In September, 2011, Ms. Merritt was feeling better, but had occasional bloating and 

abdominal cramping. Tr. 254. The following week, Dr. Grunkemeier saw Ms. Merritt prior to an 

Page 2 - OPINION & ORDER 
endoscopy. Tr. 302. He advised that if she had active disease, he would increase therapy, but he 

suspected that, based on her degree of discomfort from bloating, she had visceral 

hypersensitivity that was probably playing a significant role in her symptoms. Id. She had not 

seen the benefit very much from Xifaxan other than reduced mucus; therefore, her perceived 

bloating due to visceral hypersensitivity may be greater than the actual bloating that occurs. Id. 

In June, 2012, Ms. Merritt continued to report gas and bloating, a feeling of fullness, 

increased abdominal girth, and multiple food intolerances. Tr. 289. She was not able to tolerate 

desipramine. Id. Dr. Grunkemeier advised that she had very minimal disease with a degree of 

visceral sensitivity, as well as gas and bloating from dietary indiscretions. Tr. 291. Her fecal 

calprotectin was slightly elevated so he suspected that she had "a modicum of active Crohn's 

disease." Id. He increased the mercaptopurine and gave her Rifaximin samples for nine days. Id. 

If this did not improve her symptoms, they would consider Humira. Id. 

In November, 2012, Dr. Grunkemeier suspected that Ms. Merritt had very mildly active 

small bowel disease, but a lot of symptoms with it which significantly impaired her quality of 

life. Tr. 280. In addition, Ms. Merritt was having joint pain in her knees, hips and ankles which 

felt like flu-like symptoms. Tr. 281. She was having one to two bowel movements a day. Id. Dr. 

Grunkemeier wrote that her Crohn's was "complicated." Tr. 282. Her symptoms seemed more 

functional than related to significantly active inflammatory bowel disease. Id. She may have only 

minimally active inflammatory bowel disease, but "nonetheless her quality of life was not good.'' 

Id. Dr. Grunkemeier offered her several options and Ms. Merritt chose to take an SSSRI to 

reduce some of her functional symptoms; Dr. Grunkemeier prescribed Zoloft. Id. In January. 

2013, Ms. Merritt sought treatment for chest pain and some shortness of breath. Tr. 235. She also 

reported abdominal pain and bloating, cramps, nausea, diarrhea, and constipation at times. Tr. 

Page 3 - OPINION & ORDER 
236. She had generalized muscle aches and back pain. Id. Plaintiff reported that she had been 

under increased stress lately as her boss had retired and she no longer had a job. Id. She was 

worried that with a new job she would have to miss work because of Crohn's disease. Id. 

In July, 2013, Dr. Grunkemeier wrote to Plaintiffs counsel that Ms. Merritt has Crohn's 

disease, complicated in the past by perianal fistula and small bowel ulcerations. Tr. 269. He 

noted that she was intolerant, due to side effects, of multiple medications used to treat the disease 

and continued to have symptoms that are exacerbated nearly every day, which significantly 

impair her quality of life. Id. He wrote that Crohn's disease was a "lifelong condition for which 

there is no cure." Id. Dr. Grunkemeier wrote: 

Id. 

It is very likely that she will have a difficult time working an eight 

hour day. Even a sedentary low stress job without special 

accommodations, which may include frequent bathroom breaks or 

absences from work, which may be more than two days, due to 

exacerbation of flaring of her Crohn's disease. Based on the 

definition of being able to sustain full-time work, a clinical 

impression is based on Ms. Merritt's long struggle with her 

Crohn's disease, I do not feel she is going to be able to do so. 

That fall, Ms. Merritt continued to have symptoms of bloating, abdominal discomfort, 

and occasional nausea. Tr. 406. Rifaximin continued to be effective in mitigating some of these 

symptoms. Id. Dr. Grunkemeier noted that they were unable to use any tricyclic antidepressant or 

an SSRI because of cognitive side effects. Id. He described Plaintiffs condition as "complicated 

Crohn's disease" with either significant advancement of her small bowel disease and/or 

excessive visceral hypersensitivity. Tr. 408. He recommended Humira if he could get it 

approved. Id. He also recommended a capsule endoscopy to determine that there was progressed 

disease in the small bowel. Id. 

Page 4 - OPINION & ORDER 
In the spring of 2014, Ms. Merritt reported bloating, abdominal pain, nausea, diarrhea and 

constipation. Tr. 395. She was waking in the middle of the night with urges to have a bowel 

movement. Id. Dr. Grunkemeier approved Xifaxin for nine days. Tr. 395-396. The next month, 

Dr. Grunkemeier approved immunomodulator monitoring for irritable bowel disease. Tr. 388. 

In May, 2014, Ms. Merritt reported abdominal pain and bulging to the right of her navel. Tr. 363. 

She had had pain off and on for a very long time, but recently she was moving some things with 

her father, pushing furniture around [and since then] the pain had not reduced. Id. Lifting or 

eating seem to bring it on, and worsened it. Id. She could feel little bulging, but her abdomen was 

swollen from Crohn's and was harder to feel. Id. She also had nausea. Id. Dr. Riccalarsen 

diagnosed an umbilical hernia, and ordered an ultrasound. Tr. 365. Steven Giss, M.D., diagnosed 

Ms. Merritt with an umbilical hernia, and recommended surgery. Tr. 362. Surgery was 

performed on May 28, 2014. Tr. 359. 

Plaintiff alleges disability beginning April 1, 2012 due to Crohn' s disease. On August 

14, 2014, the ALJ determined she was not disabled. The Medicare Appeals Council denied 

review on December 11, 2015, and the ALJ's decision became the final decision of the 

Commissioner. Plaintiff timely filed this appeal. 

DISABILITY ANALYSIS 

A claimant is disabled if he or she is unable to "engage in any substantial gainful activity 

by reason of any medically determinable physical or mental impairment 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)(l )(A). "Social Security Regulations set out a five-step sequential process for 

determining whether an applicant is disabled within the meaning of the Social Security Act.'' 

Keyser v. Comm 'r. Soc. Sec. Adm in., 648 F .3d 721, 724 (9th Cir. 2011 ). Each step is potentially 

Page 5 - OPINION & ORDER 
dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks 

the following series of questions: 

1. Is the claimant performing "substantial gainful activity"? 20 C.F .R. 

§§ 404.1520(a)(4)(i); 416.920(a)(4)(i). This activity is work involving 

significant mental or physical duties done or intended to be done for pay 

or profit. 20 C.F.R. §§ 404.1510; 416.910. If the claimant is performing 

such work, she is not disabled within the meaning of the Act. 20 C.F.R. 

§§ 404.1520(a)(4)(i); 416.920(a)(4)(i). If the claimant is not performing 

substantial gainful activity, the analysis proceeds to step two. 

2. Is the claimant's impairment "severe" under the Commissioner's 

regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). Unless 

expected to result in death, an impairment is "severe" if it significantly 

limits the claimant's physical or mental ability to do basic work activities. 

20 C.F.R. §§ 404.1521(a); 416.921(a). This impairment must have lasted 

or must be expected to last for a continuous period of at least 12 months. 

20 C.F.R. §§ 404.1509; 416.909. If the claimant does not have a severe 

impairment, the analysis ends. 20 C.F.R. §§404.1520(a)(4)(ii); 

416.920(a)( 4)(ii). If the claimant has a severe impairment, the analysis 

proceeds to step three. 

3. Does the claimant's severe impairment "meet or equal" one or more of the 

impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, 

then the claimant is disabled. 20 C.F.R. §§ 404. l 520(a)( 4)(iii); 

416.920(a)(4)(iii). If the impairment does not meet or equal one or more of 

the listed impairments, the analysis proceeds to the "residual functional 

capacity" ("RFC") assessment. 

a. The ALJ must evaluate medical and other relevant evidence to assess 

and determine the claimant's RFC. This is an assessment of workrelated activities that the claimant may still perform on a regular and 

continuing basis, despite any limitations imposed by his or her 

impairments. 20 C.F.R. §§ 404.1520(e); 404.1545(b)-(c); 416.920(e); 

416.945(b)-(c). After the ALJ determines the claimant's RFC, the 

analysis proceeds to step four. 

4. Can the claimant perform his or her "past relevant work" with this RFC 

assessment? If so, then the claimant is not disabled. 20 C.F.R. 

§§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). If the claimant cannot perform 

his or her past relevant work, the analysis proceeds to step five. 

Page 6 - OPINION & ORDER 
5. Considering the claimant's RFC and age, education, and work experience, 

is the claimant able to make an adjustment to other work that exists in 

significant numbers in the national economy? If so, then the claimant is 

not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v); 

404.1560( c ); 416. 960( c ). If the claimant cannot perform such work, he or 

she is disabled. Id. 

See also Bustamante v. Massanari, 262 F.3d 949, 954-55 (9th Cir. 2001 ). 

The claimant bears the burden of proof at steps one through four. Id. at 954. The 

Commissioner bears the burden of proof at step five. Id. at 953-54. At step five, the 

Commissioner must show that the claimant can perform other work that exists in significant 

numbers in the national economy. "taking into consideration the claimant" s residual functional 

capacity, age, education, and work experience." Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 

1999) (internal citations omitted); see also 20 C.F.R. §§ 404.1566; 416.966 (describing "work 

which exists in the national economy"). If the Commissioner fails to meet this burden, the 

claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the 

Commissioner proves that the claimant is able to perform other work existing in significant 

numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 954-55; 

Tackett, 180 F.3d at 1099. 

THE ALJ'S FINDINGS 

Applying the five-step analysis, the ALJ found: 

1. Plaintiff meets the insured status requirement through December 31, 2017. Tr. 

27. 

2. She did not engage in substantial gainful activity during the period since April 

1, 2012, the alleged onset date. Tr. 27. 

3. Plaintiff has the following severe medically determinable impairments: 

Crohn's disease (20 CFR § 404.1520(c)). Tr. 27. 

4. Plaintiff does not have an impairment or a combination of impairments that 

meet or medically equal the severity of one of the listed impairments in 20 

CFR Pt. 404, Subpt. P, App. 1. (20 CFR § § 404.1520( d), 404.1525 & 

404.1526). Tr. 28. 

Page 7 - OPINION & ORDER 
a. Plaintiff has the RFC to perform light work, defined as lifting and/or 

carrying up to twenty pounds occasionally and ten pounds frequently, 

standing and/or walking up to six hours and sitting up to six hours all 

within an eight hour work day with normal breaks. 20 CFR 404.1567(b ). 

In addition, Plaintiff is limited to no exposure to hazards, such as work at 

unprotected heights. She also requires three additional five minute breaks 

throughout an eight hour workday in addition to normal breaks. Tr. 28. 

5. Plaintiff is capable of performing past relevant work as a legal assistant and as 

a bookkeeper. 20 CFR § 404.1565. Tr. 31. 

Consequently. the ALJ concluded Plaintiff was not disabled as defined by the Social Security 

Act. 20 CFR § 404.1520(f). Tr. 31. 

STANDARD OF REVIEW 

The reviewing court must affirm the Commissioner's decision if it is based on the proper 

legal standards and the legal findings are supported by substantial evidence in the record. 42 

U.S.C. § 405(g); Batson v. Comm 'r. Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); see 

also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). '"Substantial evidence"' means 

"'more than a mere scintilla but less than a preponderance,"' or more clearly stated, '"such 

relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Bray 

v. Comm 'r Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shala/a. 

53 F.3d I 035, I 039 (9th Cir. 1995)). In reviewing the Commissioner's alleged errors, this Court 

must weigh "both the evidence that supports and detracts from the [Commissioner's] 

conclusions." Martinez v. Heckler, 807 F.2d 771. 772 (9th Cir. 1986). Variable interpretations of 

the evidence are insignificant if the Commissioner's interpretation is rational. Burch v. Barnhart, 

400 F.3d 676, 679 (9th Cir. 2005). 

Where the evidence before the ALJ is subject to more than one rational interpretation, the 

Commissioner's conclusion must be upheld. Batson, 359 F.3d at 1198 (citing Andrews, 53 F.3d 

at 1041 ). "However, a reviewing court must consider the entire record as a whole and may not 

Page 8 - OPINION & ORDER 
affirm simply by isolating a 'specific quantum of supporting evidence."' Robbins v. Soc. Sec. 

Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock, 879 F.2d at 501). Additionally, a 

reviewing court "cannot affirm the [Commissioner's] decision on a ground that the 

[Administration] did not invoke in making its decision." Stout v. Comm 'r. Soc. Sec. Adm in., 454 

F.3d 1050, 1054 (9th Cir. 2006) (citations omitted). Finally, a court may not reverse an ALJ's 

decision on account of an error that is harmless. Id. at 1055-56. "[T]he burden of showing that an 

error is harmful normally falls upon the party attacking the agency's determination." Shinseki v. 

Sanders, 556 U.S. 396, 409 (2009). 

Even where findings are supported by substantial evidence, "the decision should be set 

aside if the proper legal standards were not applied in weighing the evidence and making the 

decision." Flake v. Gardner, 399 F.2d 532, 540 (9th Cir. 1968). Under sentence four of 42 

U.S.C. § 405(g), the reviewing court has the power to enter, upon the pleadings and transcript 

record, a judgment affirming, modifying, or reversing the decision of the Commissioner, with or 

without remanding the case for a rehearing. 

DISCUSSION 

Plaintiff argues the ALJ erred by (1) failing to give clear and convincing reasons for 

rejecting Plaintiff's testimony; (2) failing to credit the opinion of Dr. Grunkemeier, an examining 

gastroenterologist, and (3) finding that Plaintiff retains the ability to perform her past relevant 

work as a legal assistant and bookkeeper. The Court agrees that the ALJ erred in all three ways. 

I. The ALJ failed to provide clear and convincing reasons to discount Plaintifrs 

subjective symptom testimony. 

When deciding whether to accept the subjective symptom testimony of a claimant, the 

ALJ must perform a two-stage analysis. In the first stage, the claimant must produce objective 

medical evidence of one or more impairments which could reasonably be expected to produce 

Page 9 - OPINION & ORDER 
some degree of symptom. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The 

claimant is not required to show that the impairment could reasonably be expected to cause the 

severity of the symptom, but only to show that it could reasonably have caused some degree of 

the symptom. In the second stage of the analysis, the ALJ must assess the credibility of the 

claimant's testimony regarding the severity of the symptoms.2 Id. The ALJ "must specifically 

identify the testimony she or he finds not to be credible and must explain what evidence 

undermines the testimony." Holohan v. Massanari, 246 F .3 d 1195, 1208 (9th Cir. 2001 ). General 

findings are insufficient to support an adverse credibility determination and the ALJ must rely on 

substantial evidence. Id. "[U]nless an ALT makes a finding of malingering based on affirmative 

evidence thereof, he or she may only find an applicant not credible by making specific findings 

as to credibility and stating clear and convincing reasons for each." Robbins v. Soc. Sec. Admin., 

466 F.3d 880, 883 (9th Cir. 2006).3 

First, the defendant cites to Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012), for the 

proposition that "the ALJ may discount a claimant's subjective complaints when an impairment 

was effectively controlled by medication and treatment." Def. Brief 4 (#20). This is not an 

accurate statement of the Molina court's holding. Instead, the Molina court held that evidence 

that the plaintiff failed to seek or follow proscribed treatment "can cast doubt on the sincerity of 

2 The Court notes that, pursuant to SSR l 6-3p, the ALJ is no longer tasked with making an overarching 

credibility determination and instead assesses whether the claimant's subjective symptom statements are 

consistent with the record as a whole. See SSR l 6-3p, available at 2016 WL 1119029 (superseding SSR 

96-7p ). However, the ALJ's August 2014 decision was issued nearly two years before SSR l 6-3p 

became effective and there is no binding precedent establishing that this new ruling applies retroactively. 

See Ashlock v. Colvin, 2016 WL 3438490, *5 n. 1 (W.D. Wash. June 22, 2016) (declining to apply SSR 

16-3 p to an ALJ decision issued prior to the effective date); see also Garner v. Colvin, 626 Fed.Appx. 

699, 701 (9th Cir. 2015) ("we cannot assign error to the ALJ for failing to comply with a regulation that 

did not exist at the time"). Therefore, SSR l 6-3p is inapplicable to this case. 

1 The Commissioner suggests a more deferential standard may apply, citing Pierce v. Underwood, 487 

U.S. 552, 565 (1987). I decline to accept the Commissioner's argument. See Burrell v. Colvin, 775 F.3d 

1133, 1136 (9th Cir. 2014) (reasserting that the ALJ must provide "specific, clear and convincing 

reasons" to support a credibility analysis). 

Page 10 - OPINION & ORDER 
the [plaintiff's symptom] testimony," especially if there are no good reasons given for such 

failure. Here, Ms. Men-itt did not fail to seek or follow a proscribed treatment. Instead, she 

actively sought treatment, and readily admitted that treatment helped improve her symptoms. 

although her doctor noted that she tolerated only certain medications, and the medications that 

were most effective lasted for a few weeks at most. Indeed, she continued to have symptoms 

every day, including abdominal cramping and bloating, dian-hea, nausea, constipation, and a 

general feeling of sickness. These symptoms are consistent with the treatment record, which 

indicates that Plaintiff suffered from "visceral hypersensitivity that caused significant symptoms 

impairing the quality of her life:' Tr. 269, 408. The AU does not point to any evidence in the 

record that Plaintiff's improvement of symptoms with medication was permanent or even longlasting. 

Second, the ALJ discounted Plaintiff's symptoms because he determined that her 

activities were not as limiting as her subjective testimony indicated. Specifically, the ALJ noted 

that "she was the sole caregiver for three children as well as her elderly father." Tr. 29. The 

AU apparently gleaned this fact from one of Dr. Grunkemeier's treatment notes; however, all 

other evidence in the record indicates this was a typographical en-or on the physician's part 

because Ms. Merritt only has one adult child, for whom she is not a caretaker. Tr. 149, 185, 345. 

This factual mistake on the part of the ALJ creates a significant difference in the overall picture 

of Plaintiff's activities of daily living. Her other activities include being able to drive a car and 

being able to go shopping once or twice a week - though she states it depends on the day and 

whether her symptoms are flaring because if they are she will have to stay home and be close to 

a bathroom. Tr.186. Such activities are entirely consistent with her subjective symptom 

testimony, and the factual error on the part of the ALJ is sufficient for remand in and of itself. 

Page 11 - OPINION & ORDER 
Third, the defendant points to Plaintiffs statements regarding her ability to work even 

when her symptoms were at their worst in 2011, until she left her job in March, 2012. Def. Brief 

6 (#20). The defendant represents that Plaintiff "left her job because her prior boss retired," and 

not because her symptoms got worse. Id. This is not a reasonable interpretation of Plaintiffs 

testimony. The AU acknowledged in the hearing that Plaintiff was able to work "full time" only 

due to her employer's extreme accommodation of her illness: 

Q: You're telling me the condition is the same, but before April 

1st, 2012, the only reason you were working was because your 

employer allowed you to work even though you were not doing it 

full-time because they were giving you extra breaks. You were 

allowed to go to the breakroom, you weren't really working seven 

hours a day because you were getting extra breaks, that they were 

being understanding of your disability. 

Tr. 57-58. 

Tr. 59. 

Q: Were you taking more - were you absent more often than, say, 

one of the other legal secretaries in the office? 

A: Oh yes I was. 

Q: How many days per month are you tell me you were absent, just 

prior - let's say the 12 months prior to April 1st, 2012? 

A: Maybe a day a month, or I would come in late, leave early. 

The fact that Plaintiff was able to work with extreme accommodations by an employer is not a 

reasonable way to discredit her symptom testimony. 

Additionally, the ALJ states that there is evidence in the record that Plaintiff "continued 

to work" after April 1, 2012, but the record is clear that she did not have any substantial gainful 

activity after that date, and at most she currently works two to five hours per week from her own 

home. Tr. 52-55. 

Finally, the ALJ stated that Ms. Merritt collected unemployment benefits, and therefore 

she '·represented to the State that she could work for the purposes of obtaining unemployment 

benefits during the same period that she was alleging to the Social Security Administration that 

Page 12 - OPINION & ORDER 
she was disabled to work." Tr. 30. The ALJ found that "these contradictory assertions erode the 

credibility of the claims allegations of disability." Id. Under Oregon law, however, a person with 

a disability may apply for unemployment benefits so long as he or she is able to perform "some 

work." OAR 471-030-0036. A person may apply for, and receive, unemployment in Oregon 

even if they have a physical or mental impairment and are limited to part-time work. Id. While 

receipt of unemployment benefits can undermine a claimant's alleged inability to work full-time, 

where-as here-the record does not establish that the claimant held herself out for full time work, 

receipt of unemployment benefits is not a basis for the ALJ' s credibility finding. Carmickle v. 

Commr., Soc. Sec. Admin., 533 F.3d 1155, 1161-62 (9th Cir. 2008). 

The Court finds that none of the ALJ's reasons for discrediting Plaintiffs symptom 

testimony are supported by substantial evidence. 

II. The ALJ failed to properly credit the opinion of Dr. Grunkemeier, an examining 

gastroenterologist. 

To reject an uncontradicted opinion of a treating doctor, the ALJ must provide clear and 

convincing reasons, supported by substantial evidence. Ghanim v. Colvin, 763 F .3d 1154, 1161, 

1162 (9th Cir. 2014 ). Even if the opinion is contradicted, an ALJ must provide specific and 

legitimate reasons, supported by substantial evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1216 

(9th Cir. 2005). 

The only part of Dr. Grunkemeier's opinion that the ALJ rejected is his opinion that, due 

to her Crohn's disease, Plaintiff is not capable of vvorking an eight-hour day, even with special 

accommodations such as frequent bathroom breaks and absences from work, which might be 

more than two days per month. The ALJ stated that this opinion "is given little weight as it is 

inconsistent with [Dr. Grunkemeier's] own treatment notes ... which document that the claimant 

reported improvement with her symptoms with medication and that he consistently noted that her 

Page 13 - OPINION & ORDER 
disease is minimal." Additionally, the ALJ found that the limitations provided "are not only 

vague and without definition, but they are also entirely inconsistent with the claimant's own 

reported ability to work full time after being diagnosed in 2011 through 2012." None of these 

reasons given by the ALJ are legitimate or supported by substantial evidence. 

First, the fact that Ms. Merritt's symptoms improved with medication does not mean that 

her symptoms were resolved. Even after her symptoms improved she continued to consistently 

report bloating, abdominal pain, nausea, diarrhea and constipation. While the notes do indicate 

that in November, 2012, Dr. Grunkemeier suspected that Ms. Merritt had very mildly active 

small bowel disease, he confirmed that she suffered from "a lot of symptoms, which significantly 

impair her quality of life." Tr. 280. As late as 2013, Dr. Grunkemeier's treatment notes state that 

Plaintiff suffered from ·'complicated Crohn' s disease" with either significant advancement of her 

small bowel disease and/or excessive visceral hypersensitivity. Tr. 408. 

Second, the limitations given by Dr. Grunkemeier are not vague, nor are they inconsistent 

with Plaintiff's reported ability to work after being diagnosed. Dr. Grunkemeier recommended 

that Plaintiff would need "frequent bathroom breaks or absences from work which may be more 

than two days [per month] due to exacerbation or flaring of her Crohn's disease." Similarly, as 

discussed above, Plaintiff testified in the hearing held by the ALJ, that the only reason she was 

able to work "full-time" was due to her employer's accommodations, including frequent 

bathroom breaks, trips to the breakroom to rest, and an understanding attitude towards her 

absences and tardiness. Therefore, the record on this issue is quite clear, and it does not 

contradict Dr. Grunkemeier's opinion in any way, but instead supports it. While the ALJ is not 

required to credit a treating physician as to the ultimate issue of disability, see SSR 96-Sp and 20 

CFR 404.1527( e ), his opinion that she would have difficulty working full time without 

Page 14 - OPINION & ORDER 
significant accommodations such as frequent bathroom breaks and excused absences and 

tardiness for flare-ups should be fully credited. 

III. The ALJ erred by finding that Plaintiff retains the ability to perform her past 

relevant work as a legal assistant and bookkeeper. 

As discussed in the sections above, the ALJ erred by discrediting Plaintiffs subjective 

symptom testimony, and by rejecting the limitations identified by her treating physician Dr. 

Grunkemeier. At the ALJ hearing the Vocational Expert testified that being away from the 

workstation for up to an hour in a day, as Plaintiff often was in her previous job, would prevent 

an employee from passing the probationary period in a new job, even if she were highly skilled. 

Tr. 71. Being absent or tardy would eliminate all work. Tr. 72. Because the record is clear and 

it is undisputed that Plaintiff would need significant accommodations for breaks, absences, and 

tardiness, the defendant has not met its burden to show that Plaintiff is capable of working an 

eight-hour day with reasonable accommodations. 

REMAND 

A district court may "revers[ e] the decision of the Commissioner of Social Security, with 

or without remanding the cause for a rehearing,'' Treichler v. Comm'r of Soc., Sec. Admin., 775 

F.3d 1090, 1099 (9th Cir.2014) (citing 42 U.S.C. § 405(g)) (alteration in original), but "the 

proper course, except in rare circumstances, is to remand to the agency for additional 

investigation or explanation," id (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744. 

105 S.Ct. 1598, 84 L.Ed.2d 643 (1985)). Ninth Circuit case law precludes a district court from 

remanding a case for an award of benefits unless certain prerequisites are met. Burrell v. Colvin. 

775 F.3d 1133, 1141 (9th Cir.2014) (discussing Garrison v. Colvin, 759 F.3d 995 (9th 

Cir.2014)). The district court must first determine that the ALJ made a legal error, such as failing 

to provide legally sufficient reasons for rejecting evidence. Id If the court finds such an error, it 

Page 15 - OPINION & ORDER 
must next review the record as a whole and determine whether it is fully developed, is free from 

conflicts and ambiguities, and "all essential factual issues have been resolved." Treichler, 775 

F.3d at 1101. In conducting this review, the district court must consider whether there are 

"inconsistencies between [the claimant's] testimony and the medical evidence in the record," id. 

at 1105, or whether the government has pointed to evidence in the record "that the AU 

overlooked" and explained "how that evidence casts into serious doubt" the claimant's claim to 

be disabled, Burrell, 775 F.3d at 1141. Unless the district court concludes that further 

administrative proceedings would serve no useful purpose, it may not remand with a direction to 

provide benefits. Id.; Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015), as amended (Feb. 

5, 2016). 

On this record, the Court believes no useful purpose would be served by remanding the 

case for further proceedings. As discussed fully above, the Court is properly convinced that the 

AU failed to provide substantial evidence to support his decision discrediting Plaintiff's 

subjective symptom testimony and rejecting Dr. Grunkemeier's uncontradicted medical opinion. 

Moreover, despite the Commissioner's arguments to the contrary, the record is fully 

developed and no meaningful purpose would be served by remanding for additional proceedings. 

Indeed. accepting as true Dr. Grunkemeier's medical opinion that Plaintiff would need 

significant accommodations including several bathrooms breaks, and Plaintiff's testimony that 

when she did work, she took numerous breaks during the day and only worked about seven hours 

per day, if not less, the Commissioner's own vocational expert testified that being away from the 

workstation for up to an hour in addition to normal breaks would prevent Plaintiff from passing a 

probationary period at a new job, even if the work was highly skilled. This would eliminate her 

ability to perform past work and also any alternative work. Similarly, Dr. Grunkemeier opined 

Page 16 - OPINION & ORDER 
that she would need to be absent at least twice, and to arrive late or leave early at least twice; the 

VE testified that such "absenteeism and/or tardiness and/or leaving early," standing alone, also 

would eliminate past work and any other employment. 

A claimant who is unable to perform past relevant work as well as any other work that 

exists in significant numbers in the national economy, after taking into account the claimant's 

RFC and age, education, and work experience, is disabled. 20 C.F.R. §§404.1520(a)(4)(iv); 

416.920(a)(4)(iv); 404.1520(a)(4)(v); 416.920(a)(4)(v); 404.1560(c); 416.960(c). Plaintiff meets 

these criteria, is therefore disabled, and remanding this case for further administrative 

proceedings would serve no useful purpose; ·'rather, it would merely delay the award of 

benefits." Dominguez, 808 F.3d at 407. 

Thus, the Commissioner's decision is reversed and remanded for the payment of 

benefits. 

ORDER 

Based on the foregoing, and pursuant to sentence four of 42 U .S.C. § 405(g), the decision 

of the Commissioner is REVERSED and the matter is REMANDED for immediate payment of 

benefits. 

IT IS SO ORDERED. 

t'::>MAR~ :'CLARKE 

United States Magistrate Judge 

Page 17 - OPINION & ORDER