IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

YVONNE RAE CULPEPPER, 

Plaintiff, 

v. 

CAROLYN W. COL VIN, Acting 

Commissioner of Social Security, 

Defendant. 

Alan Stuart Graf 

208 Pine Street 

Floyd, VA 24091 

Attorney for plaintiff 

Billy J. Williams 

United States Attorney 

Janice E. Hebert 

Assistant United States Attorney 

1000 S.W. Third Avenue, Suite 600 

Portland, Oregon 97204 

Heather L. Griffith 

Special Assistant United States Attorney 

Social Security Administration 

701 Fifth Avenue, Suite 2900 MIS/ 221A 

Seattle, Washington 98104 

Attorneys for defendant 

1 - OPINION AND ORDER 

Case No. 6:15-cv-00308-AA 

OPINION AND ORDER 

Case 6:15-cv-00308-AA Document 29 Filed 07/19/16 Page 1 of 7
AIKEN, Judge: 

Plaintiff brings this action pursuant to the Social Security Act (the Act) to obtain judicial 

review of a final decision of the Commissioner denying plaintiffs applications for Disability 

Insurance Benefits (DIB) and Supplemental Security Income (SSI) disability benefits. For the 

reasons set forth below, the Commissioner's decision is affirmed. 

BACKGROUND 

On June 2, 2011, plaintiff protectively filed applications for DIB and SSI, alleging 

disability since October 2004. Tr. 15. The applications were denied initially and upon 

reconsideration. On June 13, 2013, plaintiff and a vocational expert (VE) testified at a hearing 

before an Administrative Law Judge (ALJ). Tr. 33-65. On August 2, 2013, the ALJ issued a 

decision finding plaintiff not disabled. Tr. 12-31. The Appeals Council denied plaintiffs request 

for review, rendering the ALJ's decision the final decision of the Commissioner. Tr. 1-5. 

Plaintiff now seeks judicial review. 

Born in 1963, plaintiff was forty years old as of her alleged onset of disability. Tr. 25. 

Plaintiff completed high school and has past relevant work experience as a cleaner and janitor. 

Tr. 25. Plaintiff alleges disability since October 2004 due to various physical and mental 

impairments. Tr. 15, 21. 

STANDARD OF REVIEW 

The court must affirm the Commissioner's decision if it is based on proper legal 

standards and the findings are supported by substantial evidence in the record. Hammock v. 

Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It 

means such relevant evidence as a reasonable mind might accept as adequate to support a 

conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations 

2 - OPINION AND ORDER 

Case 6:15-cv-00308-AA Document 29 Filed 07/19/16 Page 2 of 7
omitted). The court must weigh "both the evidence that supports and detracts from the 

[Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). 

Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is 

rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 

The initial burden of proof rests upon the claimant to establish disability. Howard v. 

Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the 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). 

COMMISSIONER'S DECISION 

The Commissioner has established a five-step sequential process for determining whether 

a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520. 

At step one, the ALJ found that plaintiff had not engaged in "substantial gainful activity" 

since the alleged onset of her disability. Tr. 17; 20 C.F.R. §§ 404.1520(b), 416.920(b). 

At steps two and three, the ALJ found that plaintiff had a "medically severe impairment 

or combination of impairments" of post traumatic stress disorder, attention deficit/hyperactivity 

disorder, social phobia, dysthymia, fibromyalgia, lumbar and cervical degenerative disc disease, 

and bilateral shoulder impingement syndrome. Tr. 17. However, the ALJ found that these 

impairments did not meet or equal a listed impairment. Tr. 19; 20 C.F.R. §§ 404.1520(c),(d), 

416.920(c),(d). 

The ALJ then assessed plaintiff's residual functional capacity (RFC) and found that she 

was able to perform light work provided she can change positions if needed every 30-45 minutes. 

The ALJ further found: 

3 - OPINION AND ORDER 

Case 6:15-cv-00308-AA Document 29 Filed 07/19/16 Page 3 of 7
She can occasionally push, pull and reach overhead bilaterally. The claimant can 

occasionally climb ramps and stairs, balance, kneel, crouch and crawl. She can 

never climb ladders, ropes, or scaffolds or stoop. She can understand, remember 

and carry out only simple instructions that can be learned in 30 days or less. The 

claimant can have occasional public contact and no work directly with the public 

and occasional coworker interaction but cannot perform any cooperative group 

activities. She should not be required to travel as part of work duties. The 

claimant is to have no exposure to hazards such as unprotected heights or 

dangerous machinery. All work is to be done at desk or bench level in front of the 

claimant with only occasional need to rotate the head to left or right. 

Tr. 20. At step four, the ALJ found plaintiff could not perform her past relevant work as a 

cleaner or janitor. Tr. 25; 20 C.F.R. §§ 404.1520(e),(f), 416.920(e),(f). 

The ALJ proceeded to step five, where the burden shifts to the Commissioner to show 

that a claimant is capable of performing other work existing in significant numbers in the 

national economy. See 20 C.F.R. §§ 404.1520(g), 416.920(g). Relying on the testimony of the 

vocational expert (VE), the ALJ found that plaintiff could perform other work as a folder, 

assembler, and sorter. Tr. 26. Accordingly, the ALJ found plaintiff not disabled under the Act. 

DISCUSSION 

Plaintiff argues that the ALJ eITed by failing to consider notes of a treating physician, 

disregarding limitations found by an examining physician, and providing an erroneous 

hypothetical to the VE. 

A. Evaluation of Medical Evidence 

Plaintiff argues that the ALJ erred by failing to consider the treatment notes of a treating 

physician and by failing to include limitations assessed by an examining physician. 

The medical record includes treatment notes of Dr. Patin, a treating physician. In 

particular, plaintiff highlights treatment records of June 2011 that indicate plaintiff has "ongoing 

pain" and "poor sleep," "becomes easily agitated talking about driving and riding in a car," and 

is "moderately disabled from anxiety and inability to leave the house." Tr. 284, 286. Plaintiff 

4 - OPINION AND ORDER 

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argues that the ALJ erred by failing to mention or discuss these treatment notes, citing Marsh v. 

Colvin, 792 F.3d 1170 (9th Cir. 2015). 

In Marsh, the Ninth Circuit found error when the ALJ failed to discuss a treating 

physician and his notes, holding that "an ALJ cannot in [a] decision totally ignore a treating 

doctor and his or her notes, without even mentioning them." Id. at 1172-73. Here, the ALJ did 

not ignore Dr. Patin or her notes; rather, the ALJ found treatment records reflected that plaintiff 

told Dr. Patin that counseling sessions helped her depression, and that Dr. Patin observed 

plaintiff to have an elevated mood and "bright affect" on several occasions. Tr. 22-23. Granted, 

the ALJ did not discuss the specific treatment notes mentioned by plaintiff. As the Commissioner 

contends, however, Dr. Patin's treatment notes appear to echo plaintiffs complaints rather than 

reflect any findings of Dr. Patin. While Dr. Patin discussed plaintiffs symptoms and reports, she 

did not identify functional limitations or render the opinion that plaintiff had limitations 

precluding employment. Therefore, I find no reversible error. 

Plaintiff also argues that the ALJ failed to include a limitation found by an examining 

physician. In August 2011, plaintiff was examined by Dr. Raymond Nolan. Dr. Nolan noted 

positive fibromyalgia tender points, chronic low back and neck pain, and shoulder impingement 

syndrome. Tr. 271-72. Dr. Nolan opined that plaintiff should avoid repetitive bending, twisting 

and turning of the neck and low back, and should limit lifting and carrying. Tr. 272. Dr. Nolan 

further found that plaintiff should "minimize" pushing and pulling with her upper extremities 

and limit overhead extension with her arms. Tr. 272. Plaintiff contends that the ALJ failed to 

recognize Dr. Nolan's comment that "people with fibromyalgia door poorly with no with 

strenuous high impact repetitive activities. They do better with low impact and non-repetitive 

activities. Any job description should be tailored to that requirement." Tr. 272. Plaintiff argues 

5 - OPINION AND ORDER 

Case 6:15-cv-00308-AA Document 29 Filed 07/19/16 Page 5 of 7
that the ALJ' s RFC assessment failed to include a limitation on repetitive activities, and that the 

identified jobs of folder, sorter, and assembler all require repetitive work. 

The ALJ specifically noted Dr. Nolan's limitations and limited plaintiff to light work 

"with occasional performance of postural activities .... The limitations accommodate the 

claimant's spinal pain and fibromyalgia complaints by limiting the need to hold one position and 

limiting repetitive movements required by postural activities." Tr. 25. I find that the ALJ 

reasonably interpreted Dr. Nolan's assessment and translated his opinion into functional workplace limitations. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2004). Therefore, I find no 

error. 

B. Erroneous RFC Hypothetical 

Plaintiff also argues that the ALJ erred by providing an erroneous hypothetical to the VE. 

The ALJ provided the VE with a hypothetical claimant who could understand, remember and 

carry out "at least" simple instructions, rather than one who could understand, remember and 

carry out "only" simple instructions as indicated in the RFC assessment. Compare Tr. 61 with Tr. 

20. Plaintiff argues that the VE's response could include jobs with more complex instructions, 

given that the hypothetical claimant could understand "at least" simple instructions. As support 

for this argument, plaintiff notes that all of the jobs identified have a Reasoning Development 

Level of 2. However, as this Court has held previously, there is no conflict between simple, 

routine instructions and Level 2 reasoning. Tnijillo v. Colvin, 2014 WL 2213218, at *4 (D. Or. 

May 27, 2014) ("There appears to be consensus, including in an unpublished opinion by the 

Ninth Circuit, that a restriction to simple, repetitive tasks is not inconsistent with a job requiring 

Reasoning Level 2.") (citing cases). 

6 - OPINION AND ORDER 

Case 6:15-cv-00308-AA Document 29 Filed 07/19/16 Page 6 of 7
Plaintiff also argues that the ALJ relied on jobs that include frequent reaching when 

plaintiff is limited to occasional bi-lateral overhead reaching. However, the Dictionary of 

Occupational Titles descriptions do not indicate that any of the identified jobs require more than 

occasional overhead reaching. See DOT 369.687-018, 361.687-014, 706.684-022. Moreover, in 

response to the ALJ' s hypothetical, the VE testified that a claimant with plaintiffs RFC could 

perform these jobs. Therefore, I find no error. 

CONCLUSION 

The ALJ' s decision that plaintiff is not disabled under the Act is supported by substantial 

evidence in the record. Accordingly, the Commissioner's decision is affirmed. 

IT IS SO ORDERED. 

Dated this 

United States District Judge 

7 - OPINION AND ORDER 

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