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Thomas-Brown v. Berryhill

United States District Court, D. Oregon

October 26, 2017

NANCY A. BERRYHILL, [1]Commissioner of Social Security, Defendant.



         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 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 AFFIRMED.


         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)(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).

         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). Otherwise, 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 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), 404.1520(c).

         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 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 the Commissioner.

         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 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.


         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. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)).

         The 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. 1984)).


         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 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 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.

         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 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 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 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.

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 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.

         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 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.

         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 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.

         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 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 ...

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