Thompson v. Commissioner of Social Security Administration (2025)

Case details
Full caption
D. Arizona. Henry Verne THOMPSON v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION
Country
United States
Jurisdiction
Arizona (AZ)
Court
Arizona Supreme Court
Decided
2025
Disposition
Affirmed
Majority
James A. Teilborg (J.) (unanimous Court)
Thompson v. Commissioner of Social Security Administration, Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.12025 WL 2555732Only the Westlaw citation is currently available.United States District Court, D. Arizona.Henry Verne THOMPSON, Plaintiff,v.COMMISSIONER OF SOCIAL SECURITYADMINISTRATION, Defendant.No. CV-25-00365-PHX-JAT|Signed September 5, 2025Attorneys and Law FirmsMaren Miller Bam, Pro Hac Vice, Salus Law PLLC,Richland, WA, for Plaintiff.Edmund Jack Darcher, Michonne Louise Omo, SocialSecurity Administration, Baltimore, MD, for Defendant.ORDERJames A. Teilborg, Senior United States District Judge*1 Pending before the Court is Plaintiff's Motion forExtension of Time, (Doc. 16), Plaintiff's Motion to Strikeor Amend Opening Brief, (Doc. 18), and Plaintiff's SocialSecurity appeal, (Doc. 1). The Court will address each in turn.I. MOTION FOR EXTENSION OF TIMEPlaintiff filed a Motion for an Extension of Time wherein herequests a 14-day extension to file his Reply brief. (Doc. 16).Plaintiff correctly notes that the Reply was due on August14, 2025. (Doc. 16 at 1). Plaintiff submitted his Reply onAugust 14, 2025. (See Doc. 17). The Court will therefore denyPlaintiff's Motion for an Extension of Time as moot.II. MOTION TO STRIKE OR AMENDPlaintiff filed a Motion to Strike or Amend wherein heasks the Court to permit him to strike portions of hisOpening Brief. (Doc. 18). In part, Plaintiff filed this Motionto address “concerns raised by Defendant regarding certaincitations.” (Doc. 18 at 1). Those concerns were that Plaintiff(1) included a non-existent quotation from an existingcase, (2) mischaracterized a proposition from an existingcase, (3) cited a non-existent case, and (4) miscited acase that did not address the asserted issue. (See Doc.18 at 2). The Court notes that Plaintiff's counsel, MarenBam, was recently sanctioned for submitting an OpeningBrief in a separate Social Security case that “was repletewith citation-related deficiencies, including those consistentwith artificial intelligence generated hallucinations.”1 (2:25-cv-00689-KML-ASB Doc. 18 at 1). The Court will grantPlaintiff's Motion to Strike; the identified portions are deemedto be stricken.III. SOCIAL SECURITY APPEALAlso pending before the Court is Plaintiff's appeal from theCommission of the Social Security Administration's (“SSA,”“Commissioner,” or “Defendant”) denial of Social Securitybenefits. (Doc. 7-3). The Court has reviewed Plaintiff'sOpening Brief, (Doc. 11), Defendant's Response, (Doc. 15),and Plaintiff's Reply, (Doc. 17).a. Factual and Procedural OverviewPlaintiff is currently 54 years old2 with “at least [a] highschool education and past work experience as [a] houserepairer and [an] automobile mechanic.” (Doc. 11 at 3–4). Plaintiff filed his Social Security Disability Insurance(“SSDI”) benefits application on March 7, 2022, allegingdisabilities beginning on November 3, 2020. (Doc. 10-2 at22). The application was “denied initially on September 21,2022, and upon reconsideration on December 12, 2023.” (Id.).After an administrative hearing, an ALJ denied Plaintiff'sclaim. (Id. at 19). The SSA Appeals Council denied a requestfor review of that decision and adopted the ALJ's decision asthe agency's final decision. (Id. at 2–4).b. SSA's Five-Step Evaluation ProcessTo qualify for Social Security Disability Insurance benefits, aclaimant must show that he “is under a disability.” 42 U.S.C. §423(a)(1)(E). To be “under a disability,” the claimant must beunable to engage in “substantial gainful activity” due to anymedically determinable physical or mental impairment. Id. §423(d)(1). The impairment must be of such severity that theclaimant cannot do his previous work or any other substantialgainful work within the national economy. Id. § 423(d)(2).The SSA has created a five-step sequential evaluation processfor determining whether an individual is disabled. See 20C.F.R. § 404.1520(a)(1). The steps are followed in order, andeach step is potentially dispositive. See id. § 404.1520(a)(4).
Thompson v. Commissioner of Social Security Administration, Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.2*2 At Step One, the ALJ determines whether the claimant isengaging in “substantial gainful activity.” Id. § 404.1520(a)(4)(i). “Substantial gainful activity” is work activity that is(1) “substantial,” i.e., doing “significant physical or mentalactivities;” and (2) “gainful,” i.e., usually done “for pay orprofit.” 20 C.F.R. § 416.972(a)-(b). If the claimant is engagingin substantial gainful work activity, the ALJ will find theclaimant is not disabled. Id. § 404.1520(a)(4)(i).At Step Two, the ALJ determines whether the claimanthas “a severe medically determinable physical or mentalimpairment” or severe “combination of impairments.” Id. §404.1520(a)(4)(ii). To be “severe,” the claimant's impairmentmust “significantly limit” the claimant's “physical or mentalability to do basic work activities.” Id. § 404.1520(c). If theclaimant does not have a severe impairment or combinationof impairments, the ALJ will find the claimant is not disabled.Id. § 404.1520(a)(4)(ii).At Step Three, the ALJ determines whether the claimant'simpairment(s) “meets or equals” an impairment listed inAppendix 1 to Subpart P of 20 C.F.R. Part 404. Id. §404.1520(a)(4)(iii). If so, the ALJ will find the claimantis disabled, but if not, the ALJ must assess the claimant's“residual functional capacity” (“RFC”) before proceedingto Step Four. Id. §§ 404.1520(a)(4)(iii), 404.1520(e). Theclaimant's RFC is his ability perform physical and mentalwork activities “despite his limitations,” based on all relevantevidence in the case record. Id. § 404.1545(a)(1). Todetermine RFC, the ALJ must consider all the claimant'simpairments, including those that are not “severe,” and anyrelated symptoms that “affect what [the claimant] can do in awork setting.” Id. §§ 404.1545(a)(1)-(2).At Step Four, the ALJ determines whether the claimant hasthe RFC to perform the physical and mental demands of “hispast relevant work.” Id. §§ 404.1520(a)(4)(iv), 404.1520(e).“Past relevant work” is work the claimant has “done withinthe past 15 years, that was substantial gainful activity.” Id.§ 404.1560(b)(1). If the claimant has the RFC to performhis past relevant work, the ALJ will find the claimant isnot disabled. Id. § 404.1520(a)(4)(iv). If the claimant cannotperform his past relevant work, the ALJ will proceed to StepFive in the sequential evaluation process.At Step Five, the final step, the ALJ considers whetherthe claimant “can make an adjustment to other work,”considering his RFC, age, education, and work experience.Id. § 404.1520(a)(v). If so, the ALJ will find the claimant notdisabled. Id. If the claimant cannot make this adjustment, theALJ will find the opposite. Id.c. ALJ's Five-Step AnalysisHere, at Step One, the ALJ concluded that the recordestablished that although Plaintiff “engaged in substantialgainful activity from [November 3, 2020] through November2021,” there was a continuous 12-month period during whichhe did not engage in such activity. (Doc. 10-2 at 25). TheALJ's findings address the period during which Plaintiff didnot engage in substantial gainful activity. (Id.).At Step Two, the ALJ determined that Plaintiff “has thefollowing severe impairments: degenerative disc disease ofthe cervical and lumbar spine.” (Id.).At Step Three, the ALJ found that Plaintiff “does not havean impairment or combination of impairments that meets ormedically equals the severity of one of the listed impairments”in Appendix 1 to Subpart P of 20 C.F.R. Part 404. (Id. at 27).Subsequently, the ALJ determined that Plaintiff had the RFCto:*3 perform a range of light work asdefined in 20 CFR 404.1567(b) and416.967(b) specifically as follows: liftand/or carry 20 pounds occasionallyand 10 pounds frequently; stand and/or walk for six hours out of an eight-hour workday with regular breaks;sit for six hours out of an eight-hour workday with regular breaks;frequently push and/or pull withinthe weight limits indicated for liftingand carrying; frequently performfingering with the bilateral upperextremities; occasionally climb rampsand stairs; never climb ladders, ropes,or scaffolds; occasionally balance,stoop, kneel, crouch, and crawl;and avoid concentrated exposure tohazards, such as heavy movingmachinery and unprotected heights.(Id. at 28).
Thompson v. Commissioner of Social Security Administration, Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.3At Step Four, the ALJ concluded that Plaintiff “is unable toperform any past relevant work.” (Id. at 31).At Step Five, the ALJ, considering Plaintiff's age, education,work experience, and RFC, found that “there are jobs thatexist in significant numbers in the national economy that theclaimant can perform.” (Id. at 32). Examples of such jobsinclude marker, housekeeper cleaner, and cafeteria attendant.(Id. at 33). Accordingly, the ALJ concluded that Plaintiff“has not been under a disability, as defined in the SocialSecurity Act, from November 3, 2020, through [September13, 2024].” (Id.).d. Appellate Legal StandardThis Court may not set aside a final denial of disabilitybenefits unless the ALJ decision is “based on legal error ornot supported by substantial evidence in the record.” Revels v.Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (quoting Bentonex rel. Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir.2003)). “Substantial” evidence involves “more than a merescintilla but less than a preponderance.” Thomas v. Barnhart,278 F.3d 947, 954 (9th Cir. 2002). Substantial evidence isrelevant evidence that “a reasonable mind might accept asadequate to support a conclusion.” Id. (quoting Desrosiersv. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9thCir. 1988)). The Court, in its review, must consider the recordin its entirety, “weighing both the evidence that supportsand evidence that detracts from the [ALJ's] conclusion.” Id.(quoting Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir.2007)).The ALJ—not this Court—is responsible for resolvingambiguities, resolving conflicts in medical testimony,determining credibility, and drawing logical inferences fromthe medical record. See Andrews v. Shalala, 53 F.3d 1035,1039 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d747, 750 (9th Cir. 1989); Gallant v. Heckler, 753 F.2d 1450,1453 (9th Cir. 1984)). Therefore, when the evidence ofrecord could result in more than one rational interpretation,“the ALJ's decision should be upheld.” Orn v. Astrue, 495F.3d 625, 630 (9th Cir. 2007); Batson v. Comm'r of Soc.Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004) (“Whenthe evidence before the ALJ is subject to more than onerational interpretation, [the Court] must defer to the ALJ'sconclusion.”). Further, this Court may only review the reasonsthe ALJ provides in the disability determination; it “may notaffirm the ALJ on a ground upon which he did not rely.”Garrison, 759 F.3d at 1010. The Court will not reverse theCommissioner's decision if it is based on harmless error,which exists if the error is “ ‘inconsequential to the ultimatenondisability determination,’ or if, despite the legal error,‘the agency's path may reasonably be discerned ...’ ” Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (citationomitted).e. AnalysisPlaintiff appeals the SSA's denial of Social Security benefits,arguing that “the ALJ erred by: (1) improperly dismissingPlaintiff's mental impairments at step two of the sequentialevaluation; (2) formulating a [RFC] unsupported by anymedical opinion evidence; and (3) conducting a flawed step-five analysis by identifying jobs that conflict with Plaintiff'sstooping limitation.” (Doc. 11 at 8). The Court now rules.i. Mental Impairments*4 In evaluating the severity of mental impairments, theALJ must rate the degree of the Plaintiff's limitation infour broad functional areas, sometimes referred to as the“Paragraph B” areas: (1) “[u]nderstand, remember, or applyinformation;” (2) “interact with others;” (3) “concentrate,persist, or maintain pace;” and (4) “adapt or manage oneself.”20 C.F.R. § 404.1520a(c)(3). The ALJ completes this ratingusing a five-point scale: none, mild, moderate, marked, andextreme. 20 C.F.R. § 404.1520a(c)(4).Here, the ALJ stated the Paragraph B criteria and analyzedeach functional area in turn. (Doc. 10-2 at 26). First, theALJ found Plaintiff had no limitation in understanding,remembering, or applying information. The ALJ reasonedthat Plaintiff “did not report or testify to [relevant]limitations” and psychiatric exams consistently showedPlaintiff was alert, oriented, and that he understood hismedications. (Id.). The ALJ also pointed out that Plaintiff“was noted to understand the risks and be able to makean informed decision regarding leaving the hospital againstmedical advice.” (Id.).Next, the ALJ found Plaintiff had no limitation ininteracting with others. The ALJ explained Plaintiff “reportedno issues getting along with others” and “[p]sychiatricexams consistently showed he was alert, oriented, andcooperative.” (Id.). The ALJ also cited reports thatPlaintiff “interact[ed] well with other patients and staffduring his inpatient treatment...[and] had cooperative andpleasant behavior with appropriate eye contact and goodhygiene.” (Id.).
Thompson v. Commissioner of Social Security Administration, Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.4The ALJ then found Plaintiff had no limitation inconcentrating, persisting, or maintaining pace. (Id.). TheALJ again noted that Plaintiff “did not report difficultiesin this area.” (Id.). Plaintiff was also “noted to participatein therapy sessions and [he] verbalized [an] understandingof information regarding his medications, their uses, andpossible side effects.” (Id.). Finally, the ALJ found thatPlaintiff was mildly limited in adapting or managing himself.The ALJ cited Plaintiff's testimony that he is homeless and“that despite going through inpatient detox treatment, hecontinues to use illicit substances.” (Id.).Plaintiff now argues that “[t]he ALJ's evaluation of theparagraph B criteria is legally insufficient.” (Doc. 11 at 10).Specifically, Plaintiff takes issue with the ALJ's citation ofevidence from the period during which Plaintiff receivedinpatient treatment, because “Plaintiff was in a highlystructured, monitored treatment environment,” which doesnot reflect “Plaintiff's functioning in the real world or inany competitive work setting.” (Id.). The Commissionerresponds that “Plaintiff does not cite any evidence to showthat his mental functioning outside the ‘highly structured’environment of substance use treatment indicated mentallimitations.” (Doc. 15 at 8). Similarly, Plaintiff argues that“[t]he ALJ failed to acknowledge that these ‘normal’ mentalstatus observations occurred during Plaintiff's brief inpatienttreatment stay and may not have been sustained followingdischarge.” (Doc. 11 at 10). The Commissioner responds thatPlaintiff again did not provide any evidence “that normalmental status examination findings ‘may not have beensustained’ following discharge from treatment.” (Doc. 15 at9). The Court agrees with the Commissioner on this point; theALJ properly analyzed Plaintiff's mental impairments usingthe evidence available in the record.*5 The Court also finds unpersuasive Plaintiff's evidentiarycitations. For example, Plaintiff cites his own testimony thathe had “relaps[ed] and was not in a period of sustainedabstinence.” (Doc. 11 at 10). But this testimony alone doesnot establish a severe impairment in any of the ParagraphB areas, and Plaintiff did not otherwise testify to specificmental limitations. Similarly, while it is true that someproviders indicated that Plaintiff presented as “obviouslyirritable anxious,” this was one step below the most “extreme”option,3 suggesting that this still would not fit a “severe”rating. (See, e.g., Doc. 10-14 at 81, 113; Doc. 10-15 at 31, 95;Doc. 10-16 at 77; Doc. 10-17 at 139).Plaintiff also cites the “broad regimen of psychotropicmedications” prescribed “by his treating provider for anxietyand related symptoms.” (Doc. 11 at 11). It appears to theCourt that many of these medications were prescribed foropioid withdrawal and were only prescribed during Plaintiff'sinpatient treatment stay, undermining Plaintiff's claim that themedications “reflect ongoing, clinically significant anxietythat impacts daily life.” (Doc. 11 at 11; see Doc. 10-14 at3–33). Thus, the ALJ did not err in not relying on thesemedications; Plaintiff's attempts on appeal to recast them assomething other than what the record supports does not showerror by the ALJ.In the Reply, Plaintiff states that a “state agency psychologicalconsultant...determined Plaintiff's anxiety was severe.” (Doc.17 at 2). It appears to the Court that the state agencypsychological consultant did not speak with Plaintiff andspecifically stated that there was “insufficient evidence tosubstantiate the presence of [anxiety or depression].” (AR89-90). Plaintiff also states that “Dr. Adrianne Galluci Ph.D.determined that Plaintiff's depression was severe.” (Doc. 17at 2). In fact, Dr. Galluci also specifically stated there was“insufficient evidence to substantiate the presence of [anxietyor depression]” and there was “no indication of other [mentalhealth] issues.” (AR 109). Thus, the ALJ did not err in findingthat the record did not support a finding of a severe mentalimpairment.Plaintiff points to the fact that at least two other providersfound that Plaintiff presented as irritable, anxious, and/or guarded. (Doc. 10-16 at 16, 111). Additionally, a non-physician conducting a mental health assessment noted that“[s]coring of pre-screening for depression symptoms may beinfluenced by masking of emotions and/or poor emotionalintelligence, as patient reported experiencing thoughts of ‘notwanting to live’ prior to treatment admission.” (Doc. 10-15at 163). This evidence, without more, does not suggest a“severe” mental impairment, and the ALJ therefore did noterr in not interpreting this evidence in the way Plaintiff arguesit should be interpreted.In conclusion, the Court agrees with the Commissioner that“[t]he ALJ relied on the evidence of mental status that wasavailable in the record and reasonably concluded that itdid not show that Plaintiff had any mental limitations thatwarranted inclusion in the RFC.” (Doc. 15 at 9).ii. Medical Evidence
Thompson v. Commissioner of Social Security Administration, Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.51. Development of RecordPlaintiff argues that because “agency medical consultants didnot offer any opinion,” the ALJ “should have recognizedthe record was inadequate and exercised his duty to furtherdevelop the record – for example, by ordering a consultativeexamination or calling a medical expert to review theimaging.” (Doc. 11 at 13–14).Plaintiff is correct that the ALJ has a duty to develop therecord fully and fairly. Tonapetyan v. Halter, 242 F.3d 1144,1150 (9th Cir. 2001). One way that an ALJ may discharge thisduty is by “keeping the record open after the hearing to allowsupplementation of the record.” Id. Here, the ALJ did not errbecause this duty was discharged when the ALJ gave Plaintifftwo extra weeks after the hearing to obtain additional medicalrecords. (Doc. 10-2 at 45).*6 Normally, the inquiry would end here. However,Plaintiff's claim of error on appeal—that the record wasinadequately developed due to ALJ error—is refuted by therecord itself, which shows that the fault in developing therecord lies with Plaintiff himself. On June 6, 2022, the agencyattempted to contact Plaintiff's counsel. (Doc. 10-3 at 6). Theagency “was on hold for 10 minutes,” was “unable to reach[a] live person,” and left a voicemail that alerted counsel thatif certain materials were not received in 10 days, the agencywould “have to make a decision with what [was] in [the] file,”which could “result in a determination of not disabled.” (Id.).On June 15, 2022, the agency again attempted to contactPlaintiff's counsel, was unable to reach anyone, and leftanother voicemail informing counsel that “failure to respondwithin 10 days of this notice could result in an unfavorabledecision due to not cooperating.”4 (Id.). The record alsoreflects that the agency attempted to contact Plaintiff himself,but that his voicemail inbox was full, and the agency wasunable to leave a voicemail message. (Id. at 6).Regarding Plaintiff's physical symptoms, ConsultativeExaminer Dea ultimately concluded that he would not requesta consultative exam and recommended insufficient evidencefor this claim. (Id. at 7 (“... Very little ME in file to determineseverity.... I have attempted on numerous occasions to speakto the clmt and AR with no luck. DP is complete andforms have not been returned. Because of noncooperationI will not be requesting a CE. [ ] [R]ecommending IE forthis clm.”)). Dea made similar findings regarding Plaintiff'smental impairments. (Id. “Clmt is a 51 yo alleging depressionand anxiety. There is no ME in file to support theseallegations. I have attempted on numerous occasions to speakto the clmt and AR with no luck. DP is complete and formshave not been returned. Because of noncooperation I willnot be requesting a CE. [ ] [R]ecommending IE for thisclm.”). Consultative Examiners Amon and Abrahimi agreed.(Doc. 10-3 at 8–9). Consequently, the agency concluded thatPlaintiff was not disabled. (Id. at 10).Plaintiff sought reconsideration of this conclusion. It wasagain noted that there was limited medical evidence in thefile and that Plaintiff had not provided necessary forms.(Doc. 10-3 at 26). Consultative Examiner Mallik concludedthat there was insufficient evidence to adjudicate Plaintiff'sclaim. (Id. at 27). Regarding Plaintiff's mental impairments,Consultative Examiner Gallucci agreed. (Id. at 28).An ALJ does not err if the ALJ tries to procure a consultativemedical opinion but cannot do so because “the consultativeexaminers lacked sufficient information due to Plaintiff's ownfailure to provide necessary information.” Diaz v. Comm'rof Soc. Sec., 1:24-CV-00704-EPG, 2025 WL 2299515, at *5(E.D. Cal. Aug. 8, 2025). Put differently, a Plaintiff may notappeal on the basis “that the ALJ erred by failing to obtaina consultative medical opinion where the ALJ attempted toobtain that opinion, but the consultative examiner concludedthat it had insufficient information because Plaintiff did notprovide requested information.” Id. at *3. This is, in part,based on the duty Plaintiff has to provide information to theagency. See Social Security Ruling (SSR) 17-4p (claimantsand their representatives have affirmative duty “to act withreasonable promptness to help obtain the information orevidence that the claimant must submit and forward theinformation or evidence to us as soon as practicable”).Here, neither Plaintiff nor Plaintiff's counsel providedrequisite information to the agency. The consultativeexaminers, initially and upon reconsideration, reviewedthe evidence in the record and found it insufficient toestablish a disability. When the case came before the ALJ,the ALJ correctly “did not rely on Plaintiff's failure to[cooperate] ... as a basis for finding Plaintiff not disabled,” butrather “evaluated Plaintiff's claim on the evidence presented,including the medical evidence of record and Plaintiff'stestimony, and rendered an RFC and determination based onthat evidence.” Diaz, 2025 WL 2299515, at *6. Accordingly,the Court finds that the ALJ did not err in this regard.2. “Playing Doctor”
Thompson v. Commissioner of Social Security Administration, Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.6*7 Plaintiff generally objects to the ALJ's RFC findingsbecause, Plaintiff argues, the ALJ “derived” them “from hisown reading of the raw medical data.” (Doc. 11 at 12).Plaintiff specifically takes issue with the ALJ “independentlytranslating MRI and CT scan results – which showed severespinal pathology – into specific work limitations.” (Doc. 11 at12). The Commissioner responds that the scan results cited bythe ALJ “were not raw images that the ALJ interpreted withno medical guidance, but rather summaries of ‘impression[s]’or ‘findings’ from a medical professional.” (Doc. 15 at 10).The Court agrees with the Commissioner. The ALJ uses thelanguage of, and cites to, the impressions and findings frommedical providers, but does not rely on its own interpretationof any “raw medical data.” (AR 28 (citing Exhibit 9F)). Tothe extent that Plaintiff argues that the ALJ could not makean RFC determination because “no doctor...opined at all onPlaintiff's functional capacities,” the Court addressed thatargument above and will not repeat its reasoning.5 (Doc. 11at 12; see also Doc. 11 at 14).iii. Stooping LimitationFinally, Plaintiff argues the ALJ's RFC finding is notsupported by substantial evidence because there is aconflict between the jobs that ALJ found Plaintiffcould perform and the ALJ's finding that Plaintiff could“occasionally...stoop.” (Doc. 11 at 15–16; Doc. 10-2 at 28).A person that can stoop “occasionally” can stoop “up to one-third of the time.” Titles II & Xvi: Capability to Do OtherWork-Themedical-Vocational Rules As A Framework forEvaluating Solely Nonexertional Impairments, SSR 85-15, at*7 (1985).Based on the RFC, the ALJ adopted the vocational expert'stestimony that Plaintiff could perform the requirements ofa marker, housekeeper cleaner, or cafeteria attendant. (Doc.10-2 at 33). Plaintiff states that the Dictionary of OccupationalTitles (“DOT”) states that stooping is “frequent” for both themarker and housekeeper cleaner positions. (Doc. 11 at 16).Upon review, the Court finds this to be incorrect and isunclear where Plaintiff is receiving its information from.For the marker position, the DOT states that stooping is“not present.” 209.587-034 Marker, DICOT 209.587-034,1991 WL 671802. For the housekeeper cleaner and cafeteriaattendant positions, the DOT states that stooping “[e]xistsup to 1/3 of the time.” 323.687-014 Cleaner, Housekeeping,DICOT 323.687-014, 1991 WL 672783; 311.677-010Cafeteria Attendant, DICOT 311.677-010, 1991 WL 672694.Because these limitations are consistent with the RFC, thereis no conflict, and the ALJ did not err.6iv. Conclusion*8 In making its RFC determination, the ALJ started with anin-depth review of the medical record. (Doc. 10-2 at 28–29).The ALJ listed specific examples of medical evidence that“fail[ed] to provide strong support for [Plaintiff's] allegationsof disabling symptoms and limitations.” (Id. at 29). The ALJconcluded that although Plaintiff's “medically determinableimpairments could reasonably be expected to cause thealleged symptoms[,]...[Plaintiff's] statements concerning theintensity, persistence and limiting effects of these symptomsare not entirely consistent with the medical evidence andother evidence in the record for the reasons explained in thisdecision.” (Id. at 30). The ALJ gave specific examples ofsome of Plaintiff's statements the ALJ found inconsistent.(Id.). Finally, the ALJ found that while the record supportedthe finding of severe impairments, additional evidencesupported the ALJ's RFC findings. (Id. at 31). The ALJ listedexamples of such supporting evidence, with citations to therecord. (Id.). All cited records support the ALJ's conclusions,and the Court therefore finds that the ALJ's opinion wassupported by substantial evidence.IV. CONCLUSIONBased on the foregoing,IT IS ORDERED that Plaintiff's Motion for an Extension ofTime, (Doc. 16), is DENIED as moot.IT IS FURTHER ORDERED that Plaintiff's Motion toStrike or Amend Opening Brief, (Doc. 18), is GRANTED.The identified portions are deemed to be stricken.IT IS FURTHER ORDERED that the ALJ's decision isAFFIRMED and the Clerk of the Court shall enter judgmentaccordingly.All CitationsSlip Copy, 2025 WL 2555732
Thompson v. Commissioner of Social Security Administration, Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.7Footnotes1The Commissioner also flagged this case in its Response, (Doc. 19 at 2).2Plaintiff was 49 on the alleged disability onset date, which matters because he changed age categories oncehe turned 50. (Doc. 11 at 3–4).3The provider could have selected the following option: “Patient so irritable or anxious that participation in theassessment is difficult.” (AR 1472).4Specifically, A. Brown captured the following notes: “Left vm informing if I have sent forms to complete,however, they have not been submitted. We also need to schedule a consultative examination, however,prior to scheduling the exam, we need to ensure you and/or your client is cooperating. Failure to respondwithin 10 days of this notice could result in an unfavorable decision due to not cooperating.” (Doc. 10-3 at 6).5Plaintiff relies on Day v. Weinberger, 522 F.2d 1154 (9th Cir. 1975) to support his argument. (Doc. 11 at 12,14–15). However, the Court agrees with the Commissioner that Plaintiff's reliance on Day is misplaced. (SeeDoc. 15 at 11). In Day, the ALJ went outside the record and consulted “medical textbooks for the purposeof making his own exploration and assessment as to claimant's physical condition.” 522 F.2d at 1156. Here,Plaintiff does not allege that the ALJ consulted any outside sources.Furthermore, in Day, the ALJ rejected two, uncontradicted medical opinions and instead relied on the ALJ'sown observations of the claimant and the claimant's answer to a question. 522 F.2d at 1157. Here, Plaintiffdoes not argue that the ALJ rejected medical opinions, but rather argues that the ALJ “played doctor” when theALJ “derive[d] ultimate functional conclusions from raw data that has not been translated by a doctor.” (Doc. 11at 14). As the Commissioner explains, Day “did not...find that remand was warranted based on the discountingof a medical source statement and an ALJ substituting his own judgment for that of a medical source.” (Doc.15 at 11–12).6Because there is simply no conflict between the ALJ's RFC and the positions that the vocational experttestified Plaintiff could perform, the Court finds wholly unpersuasive the remainder of Plaintiff's arguments.For example, Plaintiff cites Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001), which holds that an ALJneed only “explain [the] deviation” when the ALJ relies on a job description “that fails to comport with aclaimant's noted limitations,” which is not the case here. (See Doc. 15 at 14 (“There is no deviation herebetween Plaintiff's noted limitations in the RFC and the requirements of the jobs the vocational expert testifiedto, and thus no further explanation was required.”)).End of Document© 2025 Thomson Reuters. No claim to original U.S. Government Works.
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