Kathryn Diane Torres v. KILOLO KIJAKAZI, Acting Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KATHRYN DIANE TORRES,
Plaintiff-Appellant,
v.
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
No. 20-17272
D.C. No. 2:18-cv-02908-DMC
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Dennis M. Cota, Magistrate Judge, Presiding
Argued and Submitted November 19, 2021
San Francisco, California
Before: PAEZ, WATFORD, and FRIEDLAND, Circuit Judges.
Kathryn Torres appeals from the district court’s order affirming the decision
of an administrative law judge (ALJ) partially denying her application for
disability insurance benefits. We reverse and remand for further proceedings.
1. The ALJ found that Torres’s statements concerning the “intensity,
persistence, and limiting effects” of her irritable bowel syndrome (IBS) and related
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
DEC 1 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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chronic diarrhea symptoms were “not fully supported.” Ordinarily, an ALJ can
reject a claimant’s testimony about the severity of her symptoms only if the ALJ
gives clear and convincing reasons supported by substantial evidence. Vasquez v.
Astrue, 572 F.3d 586, 591 (9th Cir. 2009). The district court declined to apply that
standard because it identified evidence of malingering in the administrative record.
We need not decide whether a district court is permitted to make a malingering
finding in the first instance. The Commissioner does not defend the malingering
finding on appeal, and the evidence the district court cited does not support such a
finding in any event. We accordingly apply the “clear and convincing” standard in
reviewing the ALJ’s reasons for discrediting Torres’s statements concerning the
severity of her symptoms.
2. The ALJ gave five reasons for discrediting Torres’s statements (and
similar statements from third parties) regarding the severity of her IBS symptoms.
None of these reasons suffice under the clear and convincing standard.
First, the ALJ found that Torres’s reported symptoms were inconsistent with
negative diagnostic studies. That finding lacks any support in the record. No test
exists to diagnose IBS. The condition is often diagnosed, as in this case, only after
ruling out other potential causes of the patient’s symptoms. Thus, there is no
inconsistency between the negative diagnostic results and Torres’s reported
symptoms.

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Second, the ALJ relied on the fact that Torres’s weight was relatively stable
during most of the period in question. However, the ALJ did not identify any
medical evidence in the record suggesting that weight loss is connected with IBS
or that an individual experiencing IBS symptoms of the severity Torres described
would be expected to lose weight. Indeed, discharge instructions on IBS in the
record state that weight loss is not a symptom of IBS.
Third, the ALJ found that Torres’s symptoms were adequately controlled
with treatment. This finding is not supported by substantial evidence. While
Torres testified that Nurse Practitioner David Hamilton was “helping [her] get
through” the IBS, she added that her medication had lost its efficacy “almost to
where it doesn’t work anymore.” Moreover, Hamilton continued to prescribe new
medication in an attempt to control Torres’s symptoms two years after their initial
appointment. See SSR 16-3p, 2017 WL 5180304, at *9 (Oct. 25, 2017)
(recognizing that changing medications may show that symptoms are “intense and
persistent”).
The fourth and fifth grounds cited by the ALJ were Torres’s failure to seek
more frequent or aggressive treatment after her initial appointment with Hamilton
and the lack of medical opinion evidence corroborating her asserted limitations.
While there is some evidence to support these two findings, they fail to meet the
“clear and convincing” standard required to discount Torres’s symptom testimony.

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As for Torres’s failure to seek more aggressive treatment, Torres explained
at a 2014 hearing that her impairments make it difficult for her to leave the house
for doctor appointments. See id. (“We will not find an individual’s symptoms
inconsistent with the evidence in the record on this basis without considering
possible reasons he or she may not comply with treatment or seek treatment
consistent with the degree of his or her complaints.”). The ALJ failed to develop
the record by inquiring about any further reasons why Torres might not have
sought additional or more aggressive treatment. See id. (“We may need to contact
the individual regarding the lack of treatment or, at an administrative proceeding,
ask why he or she has not complied with or sought treatment in a manner
consistent with his or her complaints.”). The record shows that Torres continued to
see Hamilton regularly after her initial appointment, and there is no suggestion in
the record that more aggressive treatments were available to manage Torres’s IBS.
Thus, the ALJ’s finding that Torres did not seek new forms of treatment after her
March 2012 appointment with Hamilton is not a convincing reason to discredit her
symptom testimony. See id. at *10 (explaining that in considering a claimant’s
treatment history, an ALJ should account for whether there is further effective
treatment that would benefit the individual).
The lack of corroborating medical opinion evidence also provides little
support for the ALJ’s conclusion. While no medical opinion evidence confirms

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Torres’s reported symptoms, none contradicts it either. The Social Security
Administration’s regulations confirm the limited probative value of this factor by
prohibiting ALJs from rejecting subjective symptom testimony solely because it is
unsubstantiated by objective medical evidence. 20 C.F.R. § 404.1529(c)(2).
3. Having improperly discounted Torres’s IBS-related symptoms and
limitations, the ALJ failed to account for these limitations in formulating Torres’s
residual functional capacity (RFC). Consequently, both the ALJ’s RFC assessment
and her Step 5 determination based on this assessment were not supported by
substantial evidence. See Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir.
2007). We reverse the district court’s judgment with instructions to remand the
case to the ALJ for further proceedings consistent with this disposition.
REVERSED and REMANDED.

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