Thomas-Brown v. Commissioner Social Security Administration

Filing 22

OPINION & ORDER: The Commissioner's final decision denying Thomas-Brown's application for disability insurance benefits is Affirmed. Signed on 10/26/17 by Magistrate Judge Paul Papak. (gm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

TAMMY THOMAS-BROWN,
Plaintiff,

6:16-cv-01401-PK
OPINION AND ORDER

v.
1

NANCY A. BERRYHILL,
Commissioner of Social Security,
Defendant.
PAPAK, Magistrate Judge:
Plaintiff Tammy Thomas-Brown filed this action on July 11, 2016, seeking judicial
review of the Commissioner of Social Security's final decision denying her application for
disability insurance benefits ("DIB") under Title II of the Social Security Act (the "Act").
This court has jurisdiction over plaintiff's action pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3). The Court has considered all of the parties' briefs and all of the evidence in the
administrative record. For the reasons set forth below, the Commissioner's final decision is
AFFIRMED.
1

Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of Social
Security on January 20, 2017, and is therefore substituted as the Defendant in this action
pursuant to Fed. R. Civ. Pro. 25(d).
PAGE 1 - OPINION AND ORDER

DISABILITY ANALYSIS FRAMEWORK

To establish disability within the meaning of the Act, a claimant must demonstrate an
"inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected ... to last for a continuous period of not
less than 12 months." 42 U.S.C. § 423(d)(l)(A). The Commissioner has established a five-step
sequential process for determining whether a claimant has made the requisite demonstration. See

Bowen v. Yuckert, 482 U.S. 137, 140 (1987); see also 20 C.F.R. § 404.1520(a)(4). At the first
four steps of the process, the burden of proof is on the claimant; only at the fifth and final step
does the burden of proof shift to the Commissioner. See Tackett v. Apfel, 180 F.3d 1094, 1098
(9th Cir. 1999).
At the first step, an Administrative Law Judge ("ALJ") considers the claimant's work
activity, if any. See Bowen, 482 U.S. at 140; see also 20 C.F.R. § 404.1520(a)(4)(i). If the ALJ
finds that the claimant is engaged in substantial gainful activity, the claimant will be found not
disabled.

See Bowen, 482 U.S. at 140; see also 20 C.F.R. §§ 404.1520(a)(4)(i), 404.1520(b).

Othetwise, the evaluation will proceed to the second step.
At the second step, the ALJ considers the medical severity of the claimant's impairments.

See Bowen, 482 U.S. at 140-41; see also 20 C.F.R. § 404.1520(a)(4)(ii).

An impairment is

"severe" if it significantly limits the claimant's ability to perfotm basic work activities and is
expected to persist for a period of twelve months or longer. See Bowen, 482 U.S. at 141; see

also 20 C.F.R. § 404.1520(c). The ability to perform basic work activities is defined as "the
abilities and aptitudes necessary to do most jobs." 20 C.F.R. § 404. l 522(b); see also Bowen, 482
U.S. at 141. If the ALJ finds that the claimant's impairments are not severe or do not meet the
duration requirement, the claimant will be found not disabled. See Bowen, 482 U.S. at 141; see

also 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c).
PAGE 2 - OPINION AND ORDER

If the claimant's impairments are severe, the evaluation will proceed to the third step, at
which the ALJ determines whether the claimant's impairments meet or equal "one of a number of
listed impairments that the [Commissioner] acknowledges are so severe as to preclude
substantial gainful activity."

Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iii),

404.1520(d). If the claimant's impairments are equivalent to one of the impairments enumerated
in 20 C.F.R. § 404, Subpt. P, App. 1, the claimant will conclusively be found disabled.

See

Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1520(d).

If the claimant's impairments are not equivalent to one of the enumerated impairments,
the ALJ is required to assess the claimant's residual functional capacity ("RFC"), based on all the
relevant medical and other evidence in the claimant's case record. See 20 C.F.R. § 404.1520(e).
The RFC is an estimate of the claimant's capacity to perform sustained, work-related, physical
and mental activities on a regular and continuing basis,2 despite the limitations imposed by the
claimant's impairments. See 20 C.F.R. § 404.1545(a); see also SSR 96-8p, 1996 WL 374184, at

*1 (July 2, 1996).
At the fomih step of the evaluation process, the ALJ considers the RFC in relation to the
claimant's past relevant work.

See Bowen, 482 U.S. at 141; see also 20 C.F.R. §

404.1520(a)(4)(iv). If, in light of the claimant's RFC, the ALJ determines that the claimant can
still perform his or her past relevant work, the claimant will be found not disabled. See Bowen,
482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(f). In the event the claimant
is no longer capable of performing his or her past relevant work, the evaluation will proceed to
the fifth and final step, at which the burden of proof is, for the first time, on the Commissioner.

2

"A 'regular and continuing basis' means 8 hours a day, for 5 days a week, or an
equivalent work schedule." SSR 96-Sp, 1996 WL 374184, at *l (July 2, 1996).
PAGE 3 - OPINION AND ORDER

At the fifth step of the evaluation process, the ALJ considers the RFC in relation to the
claimant's age, education, and work experience to determine whether the claimant can perfo1m
any jobs that exist in significant numbers in the national economy. See Bowen, 482 U.S. at 142;
see also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 404.1560(c), 404.1566.

If the

Commissioner meets its burden to demonstrate that the claimant is capable of performing jobs
existing in significant numbers in the national economy, the claimant is conclusively found not
to be disabled.

See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 404.1520(a)(4)(v),

404.1520(g), 404.1560(c), 404.1566.

A claimant will be found entitled to benefits if the

Commissioner fails to meet his burden at the fifth step. See Bowen, 482 U.S. at 142; see also 20
C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 404.1560(c), 404.1566.

LEGAL STANDARD
A reviewing court must affirm an ALJ's decision if the ALJ applied proper legal
standards and his findings are supported by substantial evidence in the record. See 42 U.S.C. §
405(g); see also Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
"'Substantial evidence' means more than a mere scintilla, but less than a preponderance; it is such
relevant evidence as a reasonable person might accept as adequate to support a conclusion."
Lingenfelter v. Ash·zie, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Robbins v. Soc. Sec. Admin.,
466 F.3d 880, 882 (9th Cir. 2006)).
The comt must review the record as a whole, "weighing both the evidence that supp01ts
and the evidence that detracts from the Commissioner's conclusion." Id (citing Reddick v.
Chafer, 157 F.3d 715, 720 (9th Cir. 1998)). The comt may not substitute its judgment for that of
the Commissioner. See id (citing Robbins, 466 F.3d at 882); see also Edlund v. Massanari, 253
F.3d 1152, 1156 (9th Cir. 2001). If the ALJ's interpretation of the evidence is rational, it is
immaterial that the evidence may be "susceptible [ofl more than one rational interpretation."
PAGE 4 - OPINION AND ORDER

Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (citing Gallant v. Heckler, 753 F.2d

1450, 1453 (9th Cir. 1984)).

BACKGROUND
Thomas-Brown was born October 25, 1963. Tr. 179. She obtained a high school diploma
in 1981. Tr. 196. Prior to her claimed disability onset date of April 8, 2012, Thomas-Brown had
past relevant work experience as a waitress, busser, and cook. Tr. 29, 75, 179. After being
terminated from her most recent job in February 2010, Thomas-Brown collected unemployment
compensation until April 2012-the same month she alleges her disability began. Tr. 196.
In July 2009, Thomas-Brown presented to the Bay Area Hospital emergency department
("ED") after she fell while walking up the steps to her home. Tr. 261. Dr. Rohit Nanda noted
that Thomas-Brown had an "obvious nasal fracture" and a "small contusion" on her forehead. Id.
Dr. Nanda also observed that Thomas-Brown had a "slight slurring of her speech consistent with
alcohol use" that day. Tr. 262. In connection with Thomas-Brown's visit to the ED, Dr. Nanda
ordered numerous imaging studies taken. A CT-scan and x-rays taken of the cervical spine
revealed no fractures, no "significant focal disc protrusion," and "mild degenerative disc disease
narrowing at C5-6 and C6-7 with transverse endplate ridging and mild to moderate bony
foraminal stenosis." Tr. 264; accord Tr. 270. The imaging studies also suggested a "possible
nodular mass at the right lung apex," requiring further investigation. Tr. 270. A subsequent
chest x-ray revealed "moderate chronic obstructive pulmonary disease" and "evidence of [a]
prior right apical lung surgery"; however, "[n]o true lung nodule" was identified. Tr. 272. A
head CT-scan showed "normal intracranial structures," and a "probable mildly depressed nasal
fracture." Tr. 268. Thomas-Brown was treated with morphine for her pain, and discharged with
instructions to follow up with a specialist for her nose if, after the swelling subsided, there was
an unacceptable amount of deviation in her nose. Tr. 262. There is no evidence in the record
PAGE 5- OPINION AND ORDER

indicating whether Thomas-Brown sought additional medical treatment relating to injuries
resulting from her fall.
In October 2011, Thomas-Brown was seen by Dr. Dallas Catter.

Tr. 273.

She

complained of hoarseness and throat irritation, a prolapsed rectum, left ear pain relating to her
jaw, and asthma symptoms. Id. Dr. Catter observed that although Thomas-Brown's voice was
hoarse, her throat was "umemarkable," and her lungs sounded clear without wheezing. Id. He
found that her left eardrum was normal with some tenderness in her temporomandibular joint.

Id. Dr. Carter also noted that her rectal prolapse was "more of a surgical problem" that would
require "some special program" to address. Id. He gave Thomas-Brown samples ofCelebrex for
her jaw issues and hydrocodone for her pain. Id. Thomas-Brown repotted that she was going to
see an ear, nose, and throat ("ENT") doctor at a free clinic the following month. Id. Dr. Catter
also requested that she return for a follow-up with him three to four weeks later. Id. The record
reflects that Thomas-Brown never sought out an ENT specialist, and she cancelled her follow-up
appointment with Dr. Carter. Id.
On October 22, 2012, Thomas-Brown protectively filed an application for DIB benefits,
alleging a disability onset date of April 8, 2012. Tr. 179-80. In connection with her application,
Thomas-Brown claimed to be disabled by degenerative mthritis, prolapsed bowel, itTitable bowel
syndrome ("IBS"), atthritis, fibromyalgia, depression, carpal tunnel syndrome ("CTS"),
tendonitis, inflammation of rib cattilage, asthma, and allergies to propane and scents. Tr. 195.
Thomas-Brown characterized the limitations caused by her impairments as follows:
Due to the varicose veins, am no longer capable of walking or
standing for more than a [half] hour or so at a time. Cannot lift
anything without my bowel coming out, so pretty much stuck on
my butt-but because of the fibro and mthritis [I] am not able to sit
for any length of time either. Because of the IBS and spastic
colon, the slightest stress causes me to lose my stool [without] any
PAGE 6 - OPINION AND ORDER

warning. This makes it rough to be able to work in any industry
with the public. I have become extremely depressed and have
become slightly anti-social due to my prolapsed bowel .... The
[CTS] makes it difficult to do tasks without losing the feeling in
my hands and fingers. My asthma has gotten worse and if I am
around any allergens such as propane, diesel, perfumes, mildew,
dogs, cats, or birds, [I] am [i]ncapable of breathing and everyone
thinks I have [tuberculosis]. This in turn inflames the rib
cmi[ilage] and causes severe pain.
Tr. 216.
Thomas-Brown described that her daily activities included doing at least one chore a day,
such as dishes, laundry, taking out the garbage, or vacuuming; visiting with neighbors; reading a
book, watching television, and using the computer; laying around a lot; and cooking for
approximately a half-hour at least once a day. Tr. 217, 220. She repo1ied grocery shopping
"every couple of weeks" for no more than an hour each trip. Tr. 219. She claimed she cannot lift
over five pounds, squat for longer than 20 seconds, walk more than a couple of blocks before
needing rest, kneel, sit for more than an hour, nor climb more than ten steps. Tr. 221. ThomasBrown further reported she has difficulty following written instructions, getting along with
authority figures, handling stress, and tolerating changes in her routine. Tr. 221-22. ThomasBrown's friend, Ms. Comtie Miller, provided a third-party function repmi tltat was largely
consistent with Thomas-Brown's self-report of her symptoms and activities of daily living. Tr.
224-31. The additional information provided by Ms. Miller was that Thomas-Brown dog-sits for

her and another neighbor, drinks alcohol daily to fall sleep, smokes camtabis daily for pain, and
is capable of performing yardwork. Tr. 225.
In February 2013, Thomas-Brown underwent a consultative psychiatric examination
conducted by Dr. Charles Reagan. Tr. 274-79. She reported to Dr. Reagan that she had been
depressed since the age of eight, and felt sad more days than not since. Tr. 274. Thomas-Brown
also repmied periodic episodes of increased energy accompanied by decreased sleep. Tr. 275.
PAGE 7 - OPINION AND ORDER

She described being on multiple anti-depressants in the past, which either did not work or caused
her to become irritable with racing thoughts and decreased sleep. Id. She alleged that she was
diagnosed with attention-deficit/hyperactivity disorder ("ADHD") in grade school. Id. She also
described being a victim of abuse during her childhood and that she "remembers all that
happened to her since the age of [one]." Id. She recounted that she experienced physical and
sexual abuse throughout her life, with the most recent occurrence taking place three years prior.

Id. Thomas-Brown further described avoiding people who talk about her, difficulty expressing
her emotions, and feeling estranged from others. Id. She relayed difficulties with concentration,
sleep, hypervigilance, controlling her anger, and startle response. Id. She also repo1ted hearing
angels when she "needs to have them talk to her," and the voices "tell her the truth and what to
do."

Id.

Thomas-Brown described experiencing panic episodes twice a year, obsessively

counting throughout the day, and avoiding social situations out of fear that she might do
something embarrassing. Tr. 276. She further reported that since approximately the age of 12,
she has been drinking two to three 24-ounce beers and smoking a gram of cannabis and ten
cigarettes daily. Id.
Dr. Reagan noted that Thomas-Brown was morbidly obese, had tanned skin, disheveled
hair, and was appropriately dressed. Tr. 277. Dr. Reagan observed Thomas-Brown biting her
lips during the examination, but "no other tics or unusual mannerisms" were noted. Id. She
appeared a "bit psychomotor retarded," had a congruent affect with a modestly sad and anxious
mood, and her thought was linear. Id. On examination, Thomas-Brown recalled two out oftlu·ee
words correctly after a five-minute delay, spelled "world" correctly forwards and backwards,
named four out of the last five presidents, and identified two cities on the eastern seaboard. Id.

PAGE 8- OPINION AND ORDER

She was capable of seven serial digits fotward, six serial digits forward and backwards, and
subtracting serial-sevens from I 00 with only one mistake. Id
Dr. Reagan opined that Thomas-Brown had post-traumatic stress disorder ("PTSD") from
her abusive childhood. Id. However, due to Thomas-Brown's description of memories from the
age of one, Dr. Reagan found there were "reliability issues" because "[p]eople do not have
formed memories from this age." Id. Dr. Reagan futiher opined that Thomas-Brown had mild
difficulty with concentration and modest difficulty with instructions. Tr. 278. He also noted that
Thomas-Brown described symptoms of "dysthymia," but was unsure if she described "major
depression." Tr. 277. Dr. Reagan diagnosed PTSD, ADHD "of the combined type," obsessivecompulsive disorder ("OCD") traits, social phobia, alcohol dependence, marijuana dependence,
nicotine dependence, tic disorder not otherwise specified versus Tourette's Syndrome, marijuana
induced psychosis versus Huntington's chorea psychosis versus schizotypal traits noted on axis
II, and rule out bipolar disorder type 2.

Tr. 278.

He assigned a Global Assessment of

Functioning ("GAF") score of 50-60. Tr. 279. Later in February, spirometry testing indicated a
moderate obstructive lung defect. Tr. 282
In March 2013, Thomas-Brown underwent a consultative physical examination with Dr.
Raymond Nolan. Tr. 292-93. She endorsed complaints of artlu·itis in her hips, knees, and hands,
fibromyalgia, CTS, tendinitis in her left elbow, IBS, and prolapsed bowel. Tr. 292. In regards to
CTS, Thomas-Brown described numbness in her hands while cooking and upon waking up. Id
She reported feeling apprehensive about working with the public due to her IBS, and claimed she
has problems with lifting due to rectal leakage. Id She also repotied a history of depression and
a recent decrease in memory. Id. Dr. Nolan noted that Thomas-Brown's mood and affect were
appropriate, she was alert and oriented, and she was able to follow commands without difficulty.

PAGE 9 - OPINION AND ORDER

Id.

He also documented that Thomas-Brown remembered him from when he treated her

grandmother in the past. Id.
On examination, Thomas-Brown was able to go from sitting to standing without
difficulty, her gait was normal, she could walk on her toes and heals, and she had a normal
Romberg's test and squat rise maneuver. Id. Dr. Nolan observed that Thomas-Brown had a
positive Tinel's test bilaterally, she was able to make a full fist, there was normal range of motion
in her fingers and wrists, no joint deformities, and there was normal sensation involving the
distal fingers. Tr. 292-93. She had a positive bilateral straight leg raise test in the supine
position, but a negative straight leg test in the seated position.

Tr. 293.

Thomas-Brown

demonstrated normal rotation in her hips and normal deep tendon flexes. Id. In regards to
fibromyalgia, Dr. Nolan noted only one positive tender point and that "[a]ll other fibromyalgia
test sites were negative." Id. Dr. Nolan assessed atihritis of the hands, bilateral hip and knee
pain, and tennis elbow.

Id.

He further noted that the examination was "compatible with

diagnosis of bilateral [CTS]," and was not "specifically supportive of a diagnosis of
fibromyalgia." Id.

Dr. Nolan opined that Thomas-Brown should only occasionally perform

repetitive hand and wrist activities, squatting and kneeling, repetitive elbow maneuvers, and
pushing and pulling. Id. Based on Thomas-Brown's subjective repotis of pain, Dr. Nolan opined
that she should be limited to standing and walking for two hours in an eight hour day, but she
could sit for at least six hours in an eight hour period. Id.
In July and August 2014, Thomas-Brown returned to Dr. Carter for treatment. Tr. 30108. She reported "some weird vibration related to [her] bowel," feeling a lot of pain from her
prolapsed bowel, and that she was treating her pain with alcohol and cannabis.

Tr. 301.

Thomas-Brown described artlu·itis in her elbows, knees, and hips, with "a lot of pain in the

PAGE 10 - OPINION AND ORDER

r[ight] leg, worse with walking and upright, better when in recliner." Id She denied having any
breathing problems and repotted that she was not taking any medications. Id.

Dr. Catter

refened Thomas-Brown to general surgery for her bowel prolapse and a colonoscopy. Id
However, there is no evidence in the record that Thomas-Brown has been seen by a surgeon or
underwent a colonoscopy. Dr. Carter also ordered labs and x-rays taken. Tr. 302.
In regards to Thomas-Brown's back pain, the lumbar x-rays revealed "multilevel
degenerative changes with satisfactory alignment allowing for mild retrolisthesis of LI on L2
measuring 3 mm," as well as "no compression deformities [and] no focal soft tissue
abnormalities." Tr. 30S. Images taken of Thomas-Brown's right hip showed "no acute findings
or significant degenerative changes." Id. Dr. Catter noted that lab results "showed no evidence
of effects of alcohol on her liver." Tr. 311. Dr. Catter instructed Thomas-Brown to try Lyrica
twice a day and return in a month. Tr. 308. At the hearing, Thomas-Brown repotted that after
taking one dose her "heatt almost gave out" and Dr. Catter informed her to stop taking the
medication. Tr. S1-S2.
On August 12, 2014, a hearing was conducted before ALJ Robett Spaulding in
connection with Thomas-Brown's DIB application. Tr. 44-80. Thomas-Brown, her counsel, and
Francene Geers, a Vocational Expett ("VE"), were present. Id. At the hearing, Thomas-Brown
testified in relevant part that she was using cannabis and drinking four 12-ounce beers a day to
treat her pain, although she did not have a license or doctor's recommendation for use of
medicinal cannabis at that point. Tr. SO-S4. She stated that she was not currently taking any
medications, but had been working with Dr. Catter for years, unsuccessfully, to find a
medication that worked. Tr. S1. She alleged that Dr. Catter approved of her daily alcohol
consumption for treating pain. Tr. SS. Thomas-Brown then described the duties of her past

PAGE 11 - OPINION AND ORDER

work as a waitress, busser, bartender, and cook; including prepping meals, washing dishes,
constantly being on her feet, and lifting 156 pound kegs of beer onto a pallet. Tr. 56-60.
Thomas-Brown testified that she lives in a motor-home situated on a fisherman's property
where she watches over his equipment in exchange for keeping her trailer there. Tr. 61. She
also detailed that she borrows only enough electricity from her neighbor to power a refrigerator,
relying on propane for heating and cooking; and she frequently visits with friends that live on
and off the propetty. Tr. 60, 62-63, 65. Thomas-Brown stated that she used to enjoy going to
local venues to dance and watch her friends' band perform, but that she does not go anymore
because she can no longer dance and even nodding her head to the rhythm of the music causes
pain. Tr. 64-65. Thomas-Brown further testified that she does not cook often due to a lack of
appetite and because standing for more than 20 minutes is too painful. Tr. 66. After stating that
her "fibromyalgia works in weird ways," the ALJ stopped Thomas-Brown from testifying fmther
on the subject, because Dr. Nolan's tests were negative for fibromyalgia and there was no
objective medical evidence of fibromyalgia in the record. Tr. 68. Thomas-Brown then testified
that once or twice a week she is capable of doing her dishes, making her bed, and sweeping the
floor of her home. Tr. 68-69. She alleged suffering lower back pain for the last seven or eight
years. Tr. 69.
Upon examination by her attorney, Thomas-Brown stated that she could not work eight
hours a day because she could not be on her feet that long, and could not commit to working five
days a week because she is "down" for two days after doing only an hour and a half of chores.
Tr. 71. She further testified that her hands "lock up" on her, causing her to drop things. Id.
Thomas-Brown then explained that the near tln·ee-year gap between her appointments with Dr.
Cmier was due to her not having insurance, but she was able to see the doctor again after being

PAGE 12 - OPINION AND ORDER

placed on the Oregon Health Plan in January 2014. Tr. 72. She further explained that although
she did not have health insurance when she saw Dr. Carter in October 2011, she was able to pay
a reduced price while on unemployment. Id Finally, Thomas-Brown testified that the last time
she received any mental health treatment was in the early 1990's. Id.
After the hearing, in September 2014, Dr. Carter recommended the use of medicinal
cannabis for Thomas-Brown's "severe pain." Tr. 310.
On December 8, 2014, in a written decision the ALJ denied Thomas-Brown's application
for DIB. Tr. 17. Thomas-Brown timely requested review of the ALJ's decision, Tr. 12, and the
Appeals Council denied her request for review on May 6, 2016. Tr. 1-3. In consequence, the
ALJ's decision of December 8, 2014, became the Administration's final order for purposes of
judicial review. See 20 C.F.R. § 422.210(a); see also Sims v. Apfel, 530 U.S. 103, 107 (2000).
This action followed.
SUMMARY OF THE ALJ FINDINGS

At the first step of the five-step sequential evaluation process, the ALJ found ThomasBrown did not engage in substantial gainful activity at any time during the period from the
alleged onset date of April 8, 2012, through the date of the hearing. Tr. 19.
At the second step, the ALJ found Thomas-Brown had the following severe impairments:
osteoatthritis (right hip); degenerative disc disease of lumbar spine; moderate obstructive lung
defect; PTSD; ADHD; OCD; polysubstance dependence; and obesity. Id
At the third step, the ALJ found that none of Thomas-Brown's impairments was the
equivalent of any of the impairments enumerated in 20 C.F.R. § 404, Subpt P, App. 1. Tr. 21.
The ALJ therefore properly conducted an assessment of Thomas-Brown's residual functional

PAGE 13 - OPINION AND ORDER

capacity ("RFC"). Specifically, the ALJ found that Thomas-Brown had the RFC to perform light
work, 3 with the following additional limitations:
The claimant is limited to occasional climbing of ladders, ropes,
scaffolds, and stairs/ramps. She is limited to occasional crawling.
She is limited to no exposure to occupational itTitants such as
fumes, odors, dusts, gases and poorly ventilated areas. She is
limited to simple and routine tasks consistent with unskilled work
as defined by the Dictionary of Occupational Titles (DOT).
Tr. 23. In reaching this finding, the ALJ considered all symptoms and the extent to which those
symptoms could reasonably be accepted as consistent with the objective medical evidence and
other evidence. Id The ALJ also considered opinion evidence. Tr. 27.
At the fourth step, the ALJ found that Thomas-Brown was unable to perform her past
relevant work. Tr. 29.
At the fifth step, the ALJ found in light of Thomas-Brown's age, education, work
experience, and RFC that there were jobs existing in significant numbers in the national and local
economy that she could perform. Id Specifically, the ALJ found that Thomas-Brown could
perform the occupations of marker, sorter, and office helper. Tr. 30.
ANALYSIS

Thomas-Brown argues the ALJ: (1) failed to find CTS and rectal prolapse "severe"
impairments at step two; (2) failed to give clear and convincing reasons for rejecting her
symptom testimony; (3) failed to credit the opinion of examining physician Dr. Raymond Nolan;
and (4) ened in assessing Thomas-Brown's residual functional capacity, which prejudiced the
ALJ's step five determination that Thomas-Brown retains the ability to perform other work in the
national economy. Each argument is addressed in turn.

3

"Light work involves lifting no more than 20 pounds at a time with frequent lifting or
canying of objects weighing up to 10 pounds." 20 C.F.R. § 404.1567(b).
PAGE 14- OPINION AND ORDER

I.

Step Two
At step two, the ALJ must consider the medical severity of plaintiffs impairments. See

Bowen, 482 U.S. at 140-141; see also 20 C.F.R. § 416.920(a). An impairment is "severe" if it
significantly limits the plaintiffs ability to perform basic work activities and is expected to
continue for a period of twelve months or longer. Bowen, 482 U.S. at 141. A person who is able
to perform basic work activity possesses the "abilities and aptitudes necessary to do most jobs."
Id. If the ALJ finds that the plaintiffs impairments are not severe or do not meet the duration

requirement, the plaintiff will be found not disabled under the meaning of the Act. Id. However,
if the ALJ determines that the plaintiff does indeed suffer from a severe impairment, the ALJ
will proceed with the next steps of the evaluation. 20 C.F.R. § 416.920(a)(4)(ii-iii); Burch v.
Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). At step two, a claim will be rejected only if the
evidence establishes that the plaintiff's impairments present only a slight abnormality that has no
more than a minimal effect on an individual's ability to work. Webb v. Barnhart, 433 F.3d 683,
686 (9th Cir. 2005); SSR 96-3p, 1996 WL 374181 (July 2, 1996). Accordingly, the step-two
inquiry is merely a de minimus screening device to dispose of groundless claims. Smolen v.
Chafer, 80 F.3d 1273, 1290 (9th Cir. 1996) (citing Bowen, 482 U.S. at 137, 153-54).
Thomas-Brown first argues that the ALJ should have considered CTS a severe
impairment at step two. The ALJ provided two valid reasons for why he did not find CTS a
severe impairment. First, the ALJ noted that the objective medical evidence did not support
finding more than mild wrist and hand limitations. Tr. 20. Dr. Nolan opined that ThomasBrown's positive Tinel's test was "compatible with" CTS and she should be limited to occasional
hand and wrist activities. Tr. 293. The ALJ, however, found that Dr. Nolan's assessment was
inconsistent with his examination results showing that Thomas-Brown had no joint deformities
or tenderness, normal range of motion in her fingers and wrists, normal strength in her upper
PAGE 15-0PINION AND ORDER

extremities, and her ability to make a full fist. Tr. 20, 293. An ALJ may properly discount a
physician's findings when there is conflict between the physician's opinion and his treatment
notes. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008).
Second, the ALJ noted that Dr. Nolan's assessment of CTS conflicted with ThomasBrown's reported activities of daily living ("ADLs"), and relied heavily on her less-than-credible
self-reports. Tr. 20. For example, on examination, Thomas-Brown reported decreased sensation
in her finge11ips; however, Dr. Nolan noted normal sensation in his repo11.

Tr. 20, 293.

Furthermore, despite Thomas-Brown's allegations of debilitating pain, numbness, and cramping
in her hands, her activities of daily living, including a wide-range of household chores,
yardwork, shopping, and computer use, indicated only mild limitations stemming from CTS-like
symptoms. Tr. 20, 219-20, 226; see also Webb, 433 F.3d at 686 ("An impairment is not severe if
it is merely a 'slight abnormality (or combination of slight abnormalities) that has no more than a
minimal effect on the ability to do basic work activities."') (citation omitted). Moreover, the ALJ
accounted for Thomas-Brown's non-severe symptoms relating to her hands by limiting her to
light level lifting and carrying in the RFC. Tr. 20. Accordingly, the ALJ did not err in finding
Thomas-Brown's CTS non-severe at step two.
Thomas-Brown next argues the ALJ erred by finding rectal prolapse not severe. At step
two of the sequential analysis, "a physical or mental impairment must be established by objective
medical evidence from an acceptable medical source," and an ALJ "will not use [a claimant's]
statement of symptoms, a diagnosis, or a medical opinion to establish the existence of an
impairment(s)." 20 C.F.R. § 404.1521. Here, the ALJ found there was no "objective medical
evidence" showing Thomas-Brown's rectal prolapse was "more than intermittent or cause[d]
severe functional limitations of vocational relevance." Tr. 21. As the ALJ correctly noted, a

PAGE 16- OPINION AND ORDER

review of the brief medical record indicates that any notation of rectal prolapse or IBS is based
solely on Thomas-Brown's self-reports and these conditions were never actually diagnosed nor
treated by a medical source. Tr. 273, 292, 302.
Moreover, the ALJ noted that after Thomas-Brown informed Dr. Catter of her alleged
issues with rectal prolapse and the doctor referred her to a surgeon for fmther treatment, she
failed to seek any additional treatment, and never followed up with Dr. Cmter. Tr. 21, 273.
Given that an ALJ may properly discredit a claimant's allegations concerning the severity of a
validly diagnosed impairment when there is an "unexplained or inadequately explained failure to

seek treatment or to follow a prescribed course of treatment," the Court finds that this rationale
applies with equal force to the ALJ finding Thomas-Brown's mere allegations of rectal prolapse
not severe at step two. See Tommasetti, 533 F.3d at 1039; infra. Accordingly, the ALJ's step
two findings were based on substantial evidence and he did not ell' in making his determination.

II.

Thomas-Brown's Subjective Symptom Testimony
Thomas-Brown argues the ALJ ell'ed in rejecting her subjective symptom testimony. The

Ninth Circuit established two requirements for a claimant to present credible symptom
testimony: the claimant must produce objective medical evidence of an impairment or
impairments; and must show the impairment or combination of impairments could reasonably be
expected to produce some degree of symptom. Cotton v. Bowen, 799 F .2d 1403, 1407 (9th Cir.
1986).

The claimant, however, need not produce objective medical evidence of the actual

symptoms or their severity. Smolen, 80 F.3d at 1284.
If the claimant satisfies the above test and there is not any affirmative evidence of

malingering, the ALJ can reject the claimant's testimony only if the ALJ provides clear and
convincing reasons for doing so. Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007). General

PAGE 17 - OPINION AND ORDER

asse1tions that the claimant's testimony is not credible are insufficient. Id.

The ALJ must

identify "what testimony is not credible and what evidence undermines the claimant's
complaints."

Id. (citing Lester v.

Chate1~

81 F.3d 821, 834 (9th Cir. 1995)). The reasons

proffered must be "sufficiently specific to permit the reviewing court to conclude that the ALJ did
not arbitrarily discredit the claimant's testimony." Orteza v. Shala/a, 50 F.3d 748, 750 (9th Cir,
1995) (internal citation omitted). However, even if not all of the ALJ's findings for discrediting
symptom allegations are upheld, the overall decision may still be upheld, assuming the ALJ
provided other valid rationales. Batson, 359 F.3d at 1197.
Thomas-Brown contends that the ALJ en-ed in finding her symptom testimony not fully
credible because the alleged severity of her symptoms was unsuppmted by the medical evidence. In
suppoti, Thomas-Brown notes that "an individual's statements about the intensity and persistence of
pain or other symptoms or about the effect the symptoms have on his or her ability to work may not
be disregarded solely because they are not substantiated by objective medical evidence." Pl.'s Br. at
11 (citing SSR 96-7p, 1996 WL 374186, at *2 (July 2, 1996). The ALJ, however, did not discount
the severity of Thomas-Brown's symptoms solely because her symptoms were unsuppmted by her
largely umemarkable imaging studies and examination results; rather, the ALJ provided additional
clear and convincing reasons for discrediting her testimony.
First, the ALJ noted that despite Dr. Carter assessing Thomas-Brown as having hip atihritis
and lumbar spondylitis, he "did not assess any related limitations or indicate required treatment
except to prescribe medication (Lyrica) and recommend claimant 'return in a month. 111 Tr. 25 (citing
Tr. 308). "[E]vidence of 'conservative treatment' is sufficient to discount a claimant's testimony
regarding severity of an impairment. 11 Parra, 481 F.3d at 751 (citing Johnson v. Shala/a, 60 F.3d

PAGE 18-0PINION AND ORDER

1428, 1434 (9th Cir. 1995)); see also Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999);

Tommasetti, 533 F.3d at 1039.
Second, the ALJ found that Thomas-Brown's repmis to Dr. Reagan concerning her ability to
remember events from when she was only one year old raised a credibility concern. Tr. 26. Dr.
Reagan noted that there was a "possible reliability issue," because "people do not have formed
memories from this age." Tr. 277. Thomas-Brown argues that although her professed memories
are inconsistent with child development, they are a product of her mental illness and are explained
by Dr. Reagan's finding of schizotypal traits. Tr. 278. This argument merely offers ThomasBrown's preferred interpretation of the evidence; however, variable interpretations of the evidence
are insignificant if the ALJ's interpretation is a rational reading of the record. See Batson, 359
F.3d at 1193. Here, the ALJ reasonably inferred that Thomas-Brown's fabrication of memories
called into question the veracity of her other symptom allegations.
Moreover, Dr. Reagan did not attribute Thomas-Brown's implausible memories to mental
health issues; rather, he opined that Thomas-Brown's repo1is of hearing angels talk to her
suggested "schizotypal traits, marijuana induced psychosis or psychosis from [possible]
Huntington's chorea." Tr. 278. In any event, whether Dr. Reagan also believed that ThomasBrown's fabricated memories were a result of possible mental health conditions-or other
causes-is ambiguous at best, and "the ALJ is the final arbiter with respect to resolving
ambiguities in the medical evidence."

Tommaselli, 533 F.3d at 1041-42 (citing Andrews v.

Shala/a, 53 F.3d 1035, 1039-40 (9th Cir. 1995)).
Third, the ALJ found that despite Thomas-Brown's allegations of disabling mental health
impahments, she "does not have a history of psychiatric hospitalizations, nor is she cun-ently in any
mental health treatment for her repo1ied symptoms." Tr. 27, 72-73, 274-79. Thomas-Brown asserts

PAGE 19 - OPINION AND ORDER

that the reason she did not receive mental health treatment was because she could not afford
treatment until she was placed on the Oregon Health Plan ("OHP"). Ninth Circuit precedent holds
that "'unexplained, or inadequately explained, failure to seek treatment' may be the basis for an
adverse credibility finding unless one of a 'number of good reasons for not doing so' applies."
Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th

Cir. 1989)). One of those good reasons is a "claimant's failure to obtain treatment [s]he cannot
obtain for lack of funds." Id. (citation omitted).
Thomas-Brown's stated inability to afford treatment is unpersuasive. At the time of the
hearing, Thomas-Brown had been on the OHP for approximately eight months. Tr. 72. During
that time she was able to schedule several appointments with Dr. Carter, during which she
complained solely about physical health issues, e.g., back and hip pain, prolapsed bowel, and
tennis elbow. Tr. 301-02, 308, 312. Less than a month after the hearing, Thomas-Brown
returned to Dr. Carter for the singular purpose of obtaining a medical cannabis recommendation
for treatment of her "severe pain." Tr. 310. Because a person's typical reaction is to seek
medical relief from their debilitating symptoms, the ALJ was justified in finding that ThomasBrown's failure to seek out mental health treatment-particularly after any financial barrier was
removed-reflected negatively on her credibility regarding her mental health allegations. See
Orn, 495 F.3d at 638. Moreover, despite Thomas-Brown's testimony that Dr. Carter prescribed

Lyrica, in part, to treat her depression, the doctor's treatment notes indicate that it was prescribed
for hip and back pain, and there is no mention of depression made in the note. Tr. 308, 315.
Finally, the ALJ found Thomas-Brown's symptom testimony undetmined by the reason she
stopped working her last job, her collection of unemployment benefits, and the timing of her alleged
disability onset date in relation to the expiration of her unemployment benefits. Tr. 27. In making

PAGE 20 - OPINION AND ORDER

this determination, the ALJ first noted that Thomas-Brown left her last job in Febrnaiy 2010 due to
a lay-off, and not because of her impairments. Tr. 27, 196. She then received unemployment
compensation, "during which time she would have ce11ified that she was able and available to work,
and was actively seek[ing] work." Tr. 27, see also Tr. 196. After exhausting her unemployment
benefits, Thomas-Brown applied for DIB, alleging her disability onset in April 2012-the same
month her unemployment expired. Id. The ALJ also noted that based on the medical record and
Thomas-Brown's

function

reports,

"there

has

been

no

significant

change

in

her

conditions/impahments since April 2012 when her unemployment benefits expired and she
allegedly became disabled from working." Tr. 27.
Thomas-Brown notes that receipt of unemployment benefits can be used by an ALJ to
unde1mine a claimant's allegations of disability only when the recipient held herself out as being
available for full-time work. See Carmickle v.

1

Comm 1~

Soc. Sec. Admin., 533 F.3d 1155, 1161-62

(9th Cir. 2008). As such, Thomas-Brown argues that the ALJ's finding was not based on substantial
evidence because in Oregon, "a person with a disability may apply for unemployment benefits as
long as he or she is able to perfo1m 'some work.'" Pl.'s Br. at 13 (citing OR. ADMIN. R. 471-0300036(3)(e)). Here, the record does not establish whether Thomas-Brown held herself out as
available for full-time or patt-time work.

As such, the ALJ ened in finding that Thomas-

Brown's receipt of unemployment compensation indicated she was able and willing to accept
full-time work.
Thomas-Brown fu1ther argues that the reason she exited the workforce and her collection of
unemployment benefits are irrelevant because they occurred prior to her disability onset date. As a
preliminary matter, an ALJ may take into account the reasons a claimant exited the workforce
when evaluating symptom testimony. See Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir.

PAGE 21- OPINION AND ORDER

2001 ). Moreover, material issues relevant to a disability claim do not exist in a temporal silo that
is automatically fixed by the disability onset date a claimant happens to allege. Indeed, facts do
matter, and an ALJ need not turn a blind eye to context. As the ALJ pointed out, the absence of
any evidence indicating that Thomas-Brown's impairments worsened during the time between
when she was laid-off from her job and her alleged disability onset, coupled with ThomasBrown's assettion that her disability began as soon as her unemployment benefits terminated,
calls into question whether her alleged inability to work is actually due to reasons unrelated to
disability. Tr. 27. The ALJ's finding in this regard was based on a rational interpretation of
substantial evidence found in record.
In sum, with the exception of one harmless error, the ALJ provided several valid reasons
suppmted by substantial evidence for finding Thomas-Brown's symptom testimony less than
fully credible. Accordingly, the ALJ's credibility determination is upheld. Batson, 359 F.3d at
1196-97.

III.

Dr. Nolan's Opinion
Thomas-Brown argues the ALJ erred in giving little weight to the opinion of Dr. Nolan.

Specifically, Thomas-Brown contends that the ALJ failed to provide sufficient reasons for
discrediting Dr. Nolan's finding that she should be limited to a maximum of two hours of standing
or walking in an eight-hour period and should perfotm repetitive hand and wrist activities on an
occasional basis only. To reject the uncontroverted opinion of a treating or examining physician,
an ALJ must atticulate "clear and convincing" reasons for so doing. Bayliss v. Barnhart, 427
F.3d 1211, 1216 (9th Cir. 2005) (citing Lester, 81 F.3d at 830-831). If a treating or examining
physician's opinion is in conflict with substantial medical evidence or with another physician's
opinion, however, it may be rejected for merely "specific and legitimate reasons." Id

PAGE 22-0PINION AND ORDER

Dr. Nolan's standing and upper extremity limitations were contradicted by the findings of
reviewing consultants, Dr. Richard Alley and Dr. Martin Kehrli. Compare Tr. 293, with Tr. 89-90,
106-07. Drs. Alley and Kehrli found Thomas-Brown could stand for six hours in an eight-hour
period, and that any issues with her hands or wrists would be accounted for by a reduced lifting
limitation. Tr. 89, 106-07. Thus, the ALJ needed to provide only specific and legitimate reasons for
rejecting Dr. Nolan's opined limitations. Bayliss, 427 F.3d at 1216. Here, the ALJ did just that.
First, the ALJ discounted Dr. Nolan's opinion because, as Dr. Nolan noted himself, it was
"based on [Thomas-Brown's] subjective complaints."

Tr. 27, 293.

"An ALJ may reject a

treating physician's opinion if it is based to a large extent on a claimant's self-reports that have
been properly discounted as incredible." Tommasetti, 533 F.3d at 1041 (citing Morgan v.

Comm'r Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999)); see also Fair, 885 F.2d at 605;
Batson, 359 F.3d at 1195. As discussed, the ALJ gave sufficiently clear and convincing reasons
for discrediting Thomas-Brown's symptom testimony.

Accordingly, the ALJ permissibly

disregarded Dr. Nolan's opinions that were premised on those subjective complaints.
Thomas-Brown argues that "[b]asing a medical opinion, at least in part, upon a patient's
repotied symptoms does not detract from the assessment, since reliance on reported symptoms
'hardly undermines [an] opinion as to . . . functional limitations, as [a] patient's repoti of
complaints, or history, is an essential diagnostic tool."' Pl.'s Br. at 8 (quoting Green-Younger v.

Barnhart, 335 F.3d 99, 107 (2d Cir. 2003)) (alterations in original). Besides not having any
binding authority over this Couti, Thomas-Brown's reliance on Green-Younger for even its
persuasive value is misplaced. In that case, the ALJ dismissed the opinion of a physician-who
had a three year treating history with the claimant-regarding the claimant's fibromyalgia
limitations. Green-Younger, 335 F.3d at 106-07. The Second Circuit found the ALJ en-ed by

PAGE 23 - OPINION AND ORDER

failing to give controlling weight to the treating physician, because the ALJ "effectively
require[ed] objective evidence beyond the clinical findings necessary for a diagnosis of
fibromyalgia . . . . a disease that eludes such measurement." Id at I 06, I 08. The lengthy
treatment history between the claimant and physician, and the impahment at issue, fibromyalgia,
make Green-Younger inapplicable to the cunent discussion.

However, what makes Green-

Younger most immaterial to the case at bar, is the fact that the Second Circuit also dete1mined

that the ALJ's reasons for finding the claimant not credible were unsupported. Id at 108-09.
Accordingly, Green-Younger is inapposite.
Second, the ALJ found Dr. Nolan's opinion was contrary to the objective examination
findings and imaging studies in the record. Tr. 27. When evaluating conflicting opinions, an
ALJ is not required to accept an opinion that is unsupported by clinical findings, or is brief or
conclusory. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). In regards to ThomasBrown's upper extremity limitations, the ALJ noted that although Dr. Nolan observed a positive
Tinel's sign bilaterally, she had a normal range of motion in her wrists and fingers, no hand or
finger joint deformities or tenderness, normal strength, normal sensory examination, and only a
subjective report of decreased sensation in the fingers. Tr. 27, 292-93. Furthermore, the ALJ
adequately accounted for any noted limitations in Thomas-Brown's upper extremities by limiting
her to the light exertional level. Tr. 27.
In regards to Thomas-Brown's hip and lumbar impairments, the ALJ found Dr. Nolan's
standing limitation contradicted by the largely umemarkable objective medical evidence. Tr. 27.
For example, images taken of Thomas-Brown's lumbar region in connection with her treatment
by Dr. Carter showed degenerative changes without any acute findings: "satisfactory alignment,"
"mild retrolisthesis of Ll on L2 measuring 3 mm," and "no compression deformities [or] soft

PAGE 24- OPINION AND ORDER

tissue abnormalities." Tr. 27, 305-06. Images taken of Thomas-Brown's pelvis showed "no
acute findings or significant degenerative changes." Tr. 306. On examination with Dr. Nolan,
although she had a positive straight leg test bilaterally at 80 degrees, Thomas-Brown
demonstrated no neurological, motor, or sensory deficits; she could walk on her heels and toes
without issue; and had normal reflexes, gait, tandem walk, and squat maneuver. Tr. 27, 292-93.
As the ALJ correctly noted, these mostly normal results indicate that Dr. Nolan's assessed
limitations were largely based on Thomas-Brown's subjective complaints. Tr. 27. The ALJ did
not err in finding Dr. Nolan's brief and conclusory opinion was not supported by clinical
findings, including the results from the examination he administered. See Thomas, 278 F.3d at
957.
Last, the ALJ found Dr. Nolan's opinion was inconsistent with Thomas-Brown's repotted
ADLs. A discrepancy between a physician's opinion and a claimant's daily activities can provide
a specific and legitimate reason to reject that opinion. See Ghanim v. Colvin, 763 F.3d 1154,
1162 (9th Cir. 2014); Morgan, 169 F.3d at 600-02 (finding an inconsistency between a
treating physician's opinion and a claimant's daily activities a specific and legitimate reason to
discount the treating physician's opinion).

Here, the ALJ noted Thomas-Brown's ability to

perfotm a wide range of activities, e.g., vacuuming, dishes, laundry, taking out the garbage,
cooking, grocery shopping, reading, computer usage, dog-sitting, visiting with friends, and
yardwork. Tr. 27, 217, 219-20, 225. While a claimant "need not be completely incapacitated" in
order to support a finding of disability, the ALJ finding Thomas-Brown's ADLs indicated that
she was not as limited as Dr. Nolan opined was a specific and legitimate reason based on
substantial evidence found in the record. Ghanim, 763 F.3d at 1162; see also Tr. 27. Thus, the

PAGE 25 - OPINION AND ORDER

ALJ did not err and his treatment of Dr. Nolan's opinion was in accordance with the proper legal
standards.

IV.

RFC and Step Five
Thomas-Brown contends the Commissioner failed to incorporate all of her limitations

into the RFC; thus, failing to meet her burden of proving that Thomas-Brown retains the ability
to perform other work that exists in the national economy. The ALJ has the responsibility of
determining the claimant's RFC. 20 C.F.R. § 404.1546(c). The RFC is the "most [a claimant]
can still do despite [the claimant's] limitations," and is "based on all the relevant evidence in
[the] case record." 20 C.F.R. § 416.945(a)(l). The RFC is used at step four of the sequential
analysis to determine if the claimant is able to perform past relevant work, and at step five to
determine if the claimant can adjust to other work that exists in significant numbers in the
national economy. 20 C.F.R. § 416.920(a). Only limitations supported by substantial evidence
must be incorporated into the RFC and, by extension, the dispositive hypothetical question posed
to the VE. Osenbrock v. Apfel, 240 F.3d 1157, 1163-65 (9th Cir. 2001). The Court must uphold
the step five determination "if the ALJ applied the proper legal standard and his decision is
suppo1ted by substantial evidence." Bayliss, 427 F.3d at 1217.
Thomas-Brown argues the ALJ should have found her disabled at step five because "Dr.
Reagan opined that [she] has at least moderate limitations with instrnctions," and the VE testified
that the hypothetical individual being "off task 20% of an eight-hour day ... would preclude all
work." Pl.'s Br. at 17; see also Tr. 78. However, as the Commissioner correctly notes, Dr.
Reagan actually stated that Thomas Brown "would have a 'modest difficulty with instructions;'
modest generally implying minimal or small, versus moderate having specialized meaning
with[in] Social Security law." Def.'s Br. at 13 (citing Tr. 278) (emphasis in original). Moreover,

PAGE 26 - OPINION AND ORDER

Thomas-Brown fails to a11iculate how a modest difficulty with instructions translates to being off
task for 20% of a workday.
As to the remainder of Thomas-Brown's arguments, the Court finds they are simply a
rehashing of arguments already made. Thomas-Brown argues that had the ALJ accepted Dr.
Nolan's standing limitation, use of the Medical-Vocational Guidelines would have directed a
finding of disability; and as a result of the ALJ's failure to include the standing limitation in the
hypothetical to the VE, her testimony has no evidentiary value. In the same vein, ThomasBrown argues that had the ALJ included Dr. Nolan's opined upper extremity limitations into the
RFC and hypothetical, alongside the aforesaid standing limitation, there would be no remaining
jobs identified by the VE that she is capable of performing. In forming the RFC, "the ALJ must
only include those limitations supported by substantial evidence." Robbins, 466 F.3d at 886.
Here, the ALJ included all limitations he found credible and supported by substantial evidence in
the hypothetical presented to the VE. Tr. 74-79. In response, the VE testified there were several
jobs existing in the national economy that the hypothetical individual could perform. Id. The
additional limitations that Thomas-Brown argues were missing from the hypothetical and RFC
were, as discussed, properly discounted by the ALJ, and her argument fails. Accordingly, the
ALJ did not err at step five.

II
II
II
II
II
II

PAGE 27 - OPINION AND ORDER

CONCLUSION

For the reasons set fotih above, the Commissioner's final decision denying ThomasBrown's application for disability insurance benefits is AFFIRMED.

IT IS SO ORDERED.

DATED this 26th day of October, 2017.

P~-­

Honorable Paul
United States Magistrate Judge

PAGE 28 - OPINION AND ORDER