United States District Court, D. Oregon
OPINION AND ORDER
PAPAK UNITED STATES MAGISTRATE JUDGE.
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 plaintiffs 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
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)(1)(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).
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). Otherwise, the evaluation will proceed to 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 perform
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. § 404.1522(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)(h),
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).
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,  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).
fourth 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). hi 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
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 perform
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.
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. Astrue,
504 F.3d 1028, 1035 (9th Cir. 2007) (citing Robbins v.
Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)).
court must review the record as a whole, "weighing both
the evidence that supports and the evidence that detracts
from the Commissioner's conclusion." Id.
(citing Reddick v. Chafer, 157 F.3d 715, 720 (9th
Cir. 1998)). The court 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 [of]
more than one rational interpretation." Magallanes
v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (citing
Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir.
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.
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 indicating whether Thomas-Brown sought additional
medical treatment relating to injuries resulting from her
October 2011, Thomas-Brown was seen by Dr. Dallas Carter. Tr.
273, She complained of hoarseness and throat irritation, a
prolapsed rectum, left ear pain relating to her jaw, and
asthma symptoms. Id. Dr. Carter observed that
although Thomas-Brown's voice was hoarse, her throat was
"unremarkable, " 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 of Celebrex for her
jaw issues and hydrocodone for her pain. Id.
Thomas-Brown reported that she was going to see an ear, nose,
and throat ("ENT") doctor at a free clinic the
following month. Id. Dr. Carter 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.
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 arthritis, prolapsed bowel, irritable bowel
syndrome ("IBS"), arthritis, fibromyalgia,
depression, carpal tunnel syndrome ("CTS"),
tendonitis, inflammation of rib cartilage, asthma, and
allergies to propane and scents. Tr. 195. Thomas-Brown
characterized the limitations caused by her impairments as
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 arthritis [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 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 cart[ilage] and causes severe pain.
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 reported 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.
Thomas-Brown further reported she has difficulty following
written instructions, getting along with authority figures,
handling stress, and tolerating changes in her routine. Tr.
221-22. Thomas-Brown's friend, Ms. Connie Miller,
provided a third-party function report that 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 cannabis daily for pain,
and is capable of performing yardwork. Tr. 225.
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 reported periodic
episodes of increased energy accompanied by decreased sleep.
Tr. 275. 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 reported 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.
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 of three 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. She was
capable of seven serial digits forward, six serial digits
forward and backwards, and subtracting serial-sevens from 100
with only one mistake. Id.
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 further 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, "
obsessive-compulsive 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