IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MELISSA LYNN RAMBOW 

Plaintiff, 

v. 

NANCY A. BERRYHILL, 

Acting Commissioner of Social Security, 

Defendant. 

PAP AK, Magistrate Judge: 

3: 16-CV-00796-PK 

FINDINGS AND 

RECOMMENDATION 

Plaintiff Melissa Rambow protectively filed this action March 22, 2012, 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 Rambow's action pursuant to 42 U.S.C. § 405(g) and 1383(c)(3). 

Ram bow challenges the Commissioner's conclusion that she was able to perform her past 

Page 1 - FINDINGS AND RECOMMENDATION 
relevant work as an office specialist prior to March 1, 2013 on several grounds. Ram bow argues 

that the ALJ failed to: (I) find her depression, anxiety, and "rule out" neurocognitive disorders 

were severe impairments at step two of the five-step sequential evaluation process; (2) fully and 

fairly develop the record; (3) properly credit the medical opinion of treating neurologist, Dr. 

Kevin Jamison and examining psychologist, Dr. Cheryl Brischetto, Ph.D.; (4) provide a clear and 

convincing reason to discredit her subjective symptom testimony; (5) provide a legally sufficient 

reason to reject lay witness testimony; (6) develop an RFC supported by the record; and (7) 

propound a hypothetical to the vocational expert ("VE") supported by the record, thus erring in 

relying on the VE's testimony that she could perform her past relevant work prior to becoming 

disabled beginning March 1, 2013. For the reasons set forth below, the Commissioner's final 

decision should be affirmed. 

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). 1 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 

1

Effective March 27, 2017, updates were made to the regulations. Some C.F.R. sections 

referenced have been renumbered and the citations listed here are the versions of the C.F .R. that 

were in effect at the time Rambow requested judicial review. 

Page 2 - FINDINGS AND RECOMMENDATION 
(9th Cir. 1999). 

At the first step, the 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 140-141; 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. § 404.152l(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). Nevertheless, it is well established that "the step-two 

inquiry is a de minimis screening device to dispose of groundless claims." Smolen v. Chafer, 80 

F.3d 1273, 1290 (9th Cir. 1996), citing Bowen, 482 U.S. at 153-154. "An impairment or 

combination of impairments can be found 'not severe' only ifthe evidence establishes a slight 

abnormality that has 'no more than a minimal effect on an individual[']s ability to work.'" Id., 

quoting S.S.R. 85-28, 1985 SSR LEXIS 19 (1985). 

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 

Page 3 -FINDINGS AND RECOMMENDATION 
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, 

between the third and the foutih steps 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/or 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 S.S.R. No. 96-8p, 1996 SSR LEXIS 5 (July 2, 1996). 

At the foutih 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(±). 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 shifts, for the first time, to the 

Commissioner. 

2 "A 'regular and continuing basis' means 8 hours a day, for 5 days a week, or an 

equivalent work schedule." S.S.R. No. 96-8p, 1996 SSR LEXIS 5 (July 2, 1996). 

Page 4 - FINDINGS AND RECOMMENDATION 
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 a person with those 

characteristics and RFC could 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 her burden to demonstrate the existence in 

significant numbers in the national economy of jobs capable of being performed by a person with 

the RFC assessed by the ALJ between the third and fourth steps of the five-step process, the 

claimant is 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 ifthe Commissioner fails to meet that 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). 

LEGAL STANDARD 

A reviewing court must affirm an Administrative Law Judge's decision ifthe ALJ applied 

proper legal standards and his or her findings are supported by substantial evidence in the record. 

See 42 U.S.C. § 405(g); see also Batson v. Comm'r a/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 suppo1ts 

and the evidence that detracts from the Commissioner's conclusion." Id, quoting Reddickv. 

Chafer, 157 F.3d 715, 720 (9th Cir. 1998). The court may not substitute its judgment for that of 

Page 5 - FINDINGS AND RECOMMENDATION 
the Commissioner. See id., citing Robbins, 466 F.3d at 882; see also Edlund v. Massanari, 253 

F Jd 1152, 1156 (9th Cir. 2001 ). Moreover, the co mt may not rely upon its own independent 

findings of fact in determining whether the ALJ' s findings are supported by substantial evidence 

of record. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003), citing SEC v. Chene1y 

Corp., 332 U.S. 194, 196 (1947). 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, 881F.2d747, 750 (9th Cir. 1989), citing Gallantv. Heckler, 753 F.2d 

1450, 1453 (9th Cir. 1984). 

SUMMARY OF ADMINISTRATIVE RECORD3 

Rambow was born January 29, 1970. Tr. 39, 182.4 She speaks English, graduated high 

school, and completed an administrative assistant program at Columbia College of Business. Tr. 

42, 208. According to the evidence of record, prior to her amended disability onset date of 

September 1, 2011, Rambow worked as an office manager, office specialist, and an in-home day 

care assistant. Tr. 42-46, 48, 62, 201, 208, 222-26. 

The earliest medical evidence in the administrative record is from March 2004, when 

Ram bow had an MRI of her brain performed at the Samaritan Albany General Hospital 

Radiology Depattment. Tr. 345. Dr. Anthony Pappas reviewed the MRI and found Rambow had 

a "notable increase in the number of white matter lesions" in her brain since her last examination 

in 2000. Tr. 345-46. 

3 The following recitation constitutes a summaty of the evidence contained within the 

Administrative Record, and does not reflect any independent finding of fact by the court. 

4 Citations to "Tr." refer to the page(s) indicated in the official transcript of the 

administrative record filed herein as Docket No. 12. 

Page 6 - FINDINGS AND RECOMMENDATION 
The next medical evidence in the administrative record is from October 16, 2006, when 

Rambow was seen by ANP Debra O'Halloran to refill her prescription of Clonazepam, which 

Rambow was taking for her multiple sclerosis ("MS") and anxiety. Tr. 300. Ms. O'Halloran 

noted that Rambow's MS "has been fairly stable," but she "gets significant muscle fatigue." Id. 

The following month, Rambow had an appointment with Dr. Kevin Jamison who noted 

Rambow's complaints of"generalized fatigue," urinary urgency, and some issues with balance 

and numbness. Tr. 354, 529. Dr. Jamison assessed Rambow with multiple sclerosis but noted it 

was "quite stable," and planned for another MRI scan. Id. 

On December 26, 2006, Rambowunderwent an MRI of her brain. Tr. 316, 356. Results 

showed white matter lesions, which were noted by Dr. Scott Mills to be "consistent with patient's 

diagnosis of multiple sclerosis," yet "none of the lesions demonstrates abnormal contrast 

enhancement which would be indicative of an active demyelinating process." Id. Dr. Mills 

additionally wrote that the MRI was "consistent with a stable MRI appearance of MS." Tr. 359. 

Almost nine months later, on September 17, 2007, Rambow returned for a follow-up 

appointment with Ms. O'Halloran. Tr. 298. During the appointment, Ms. O'Halloran noted 

"some depression," writing that Rambow had been unable to afford an antidepressant, but had 

reported that Effexor had worked in the past. Id. Ms. O'Halloran placed Rambow on 

Ciralopram, and renewed Ram bow' s prescription for Clonzaepam for her panic attacks. Id. 

On June 3, 2008, Rambow had another follow-up appointment with Dr. Jamison 

concerning her MS. Tr. 360-61, 524-25. Rambow repo1ted recun'ing hand numbness and 

clumsiness after she ran out of A vonex two weeks before her appointment, but reported no other 

relapses. Tr. 360, 524. Dr. Jamison repotted that Rambow's MS was "quite stable," that 

Page 7 - FINDINGS AND RECOMMENDATION 
"fatigue" was her main complaint, and continued her on Avonex. Tr. 360, 524-25. 

During 2009, Rambow returned for two additional follow-up appointments with Dr. 

Jamison, and a physical examination with NP Debra Todd. Rambow's first appointment with 

Dr. Jamison was on April 14, 2009, where she rep01ied that she had quit her Avonex injections 

because they were "increasingly painful," and fatigue was "still a main issue." Tr. 362, 522. Dr. 

Jamison wrote that Rambow had "full strength in the lower extremities," and her gait was 

umemarkable. Id. Again, Dr. Jamison noted that Rambow's MS was "quite stable," but staiied 

her on Rebifbecause she was no longer tolerating the Avonex injection pain. Id. 

On September 29, 2009, Rambow had a routine physical examination with NP Debra 

Todd. Tr. 292-95. During her appointment, Rambow rep01ied that she had quit her MS 

injections, but was "doing OK" with her MS. Tr. 292. Ms. Todd wrote that Rambow 

complained of fatigue, had no chest pain or discomfoti, no muscle aches, and no limb swelling. 

Tr. 292-93. Overall Ms. Todd noted that Rambow had a "[n]ormal routine histoty and physical," 

and assessed her with sinusitis and depression. Tr. 293. 

On December 1, 2009, Rambow had her second follow-up appointment with Dr. Jamison 

that year. Tr. 365-66, 513-14. Rambow complained of"severe constant headaches and 

abdominal pain" stating that she used ibuprofen, and occasionally Vicodin, for her daily 

headaches. Tr. 365, 513. Dr. Jamison wrote that Rambow had no MS flare ups, but that she 

continued to complain of fatigue, including fatigue in her legs with activity. Id. Rambow also 

repotied pain in her fingers and temporomandibular joint ("TMJ") regions, and occasional 

dizziness or lightheadedness. Id. Dr. Jamison assessed her with "MS, clinically stable," but 

noted that "[t]roublesome symptoms include fatigue and headaches." Tr. 366, 514. He 

Page 8 - FINDINGS AND RECOMMENDATION 
prescribed Rambow with Amantadine for her headaches, and to follow-up yearly, or as-needed, 

for additional treatment. Id. 

On March 2, 2010, Rambowreturned to see Dr. Jamison. Tr. 367-68. Rambow 

complained of dizziness, right leg weakness and dragging, painful right arm joints and right hand 

numbness. Tr. 367. On examination, Dr. Jamison found that Rambow had full strength in all 

four extremities and an umemarkable gait. Id. He assessed her with clinically stable MS, with 

various subjective complaints, and scheduled another MRI. Tr. 368. Later that month, on March 

17, 2010, Rambow had an MRI of her brain taken. Tr. 318-19, 371-72. Dr. Stephanie Rufener, 

the interpreting radiologist, noted that there was "no significant interval change in confluent and 

multifocal white matter lesions bilaterally," noting that imaging was "compatible with the 

provided clinical history of multiple sclerosis." Tr. 318, 371. She also noted that "no new 

lesions are identified." Id. 

On April I, 2010, Rambow returned for a follow-up appointment with Dr. Jamison to 

review her MRI. Tr. 373-74. Dr. Jamison wrote that Rambow had no new symptoms and was 

"feeling well." Tr. 3 73. Dr. Jamison reported that Rambow' s MS was clinically stable and her 

MRI was "reassuringly stable since 2006." Id. He wrote Rambow should return for a "repeat 

MRI in eighteen months, or sooner if clinically required." Id. Five months later, Ram bow came 

in for another follow-up visit with Dr. Jamison where he wrote that Rambow's right side was 

weaker, her knees give way, and her right foot drags occasionally. Tr. 303, 375, 511. Upon 

examination, Dr. Jamison found that Rambow had full strength in her legs. Id. Rambow 

expressed interest in !tying a steroid for her right sided symptoms, so Dr. Jamison prescribed 

Prednisone and Prozac. Id. 

Page 9 - FINDINGS AND RECOMMENDATION 
During 2011, Rambow had numerous follow-up appointments with Dr. Jamison and FNP 

Todd. See Tr. 305, 307, 309, 320, 377, 379, 381, 453, 456, 459, 462, 507-09. The first of these 

appointments was on March 2, 2011, when Rambow met with NP Todd and reported a desire to 

continue taking Effexor for her mild depression, that she had started to have headaches, and that 

she wanted to stop smoking. Tr. 462-65. Ms. Todd wrote that Rambow showed fatigue, and 

depression, but had no muscle aches or limb swelling. Tr. 462-63. Ms. Todd assessed Rambow 

with nicotine dependence and depression, but otherwise found Rambow had a routine and normal 

history and physical. Tr. 464. 

On April 6, 2011, Rambow had a follow-up appointment with Dr. Jamison who 

recommended she have another MRI. Tr. 305-06, 509-10. The following day, Rambow 

underwent an MRI which showed a "new subcentimeter lesion within white matter of the R 

frontal lobe." Tr. 307, 379. About a month later, on May 4, 2011, Rambow reported to Dr. 

Jamison that her right sided numbness and weakness was improving. Tr. 309, 381. At that time, 

Dr. Jamison also noted the new white matter lesion and, again, recommended Rambow have 

another MRI done in a year. Id. 

On May 23, 2011, Rambow had an appointment with Ms. Todd where Rambow reported 

pain in her jaw, hands, wrist, arms, and shoulders. Tr. 459. Rambow was diagnosed with 

temporormandibular joint pain dysfunction syndrome, shoulder tendonitis, and tenosynovitis5 of 

the hand/wrist, and was given a referral for physical therapy. Tr. 460. A few months later, 

Rambow returned with complaints of hip pain, which Ms. Todd diagnosed as bursitis of the hip. 

5

Tenosynovitis is "inflammation of the lining of the sheath that surrounds a tendon (a 

cord that joins muscle to bone). See NIH U.S. National Library of Medicine, Medicine Plus, 

https://medlineplus.gov/ency/article/001242.htm. 

Page 10 - FINDINGS AND RECOMMENDATION 
Tr. 456. On September 22, 2011, Rambow returned to Ms. Todd with continued complaints of 

hip, right shoulder, arm, and wrist pain. Tr. 453. Ms. Todd recommended the use of ibuprofen 

and heat for the pain. Tr. 455. Rambow was also offered physical therapy, which she declined. 

Id. 

On Febrnary 27, 2012, Rambow had a physical examination done at Oregon Otihopedic 

and Spotis Medicine. Tr. 503-04. Upon examination, Rambow was noted to have muscle 

spasms, uncomfortable shoulder motion, and was assessed with subacroimal bursitis. Tr. 503. 

Rambow was recommended a stretching program and anti-inflammatory medication. Id. 

On March 26, 2012, Rambow had a follow-up MRl of her brain where multiple new 

enhancing lesions were identified. Tr. 322. Dr. Rufener wrote it was her impression that 

findings from the MRl were "compatible with disease progression." Tr. 323. The next month, 

on April 17, 2012, Rambow had an MRl of her cervical spine done which showed "multifocal 

dorsal cord signal abnormalities," which were noted to be "most likely related to the patient's 

history of MS." Tr. 500. Four days later, Rambow had a follow-up appointment with Dr. 

Jamison to discuss her MRl results. Tr. 497. During this appointment Dr. Jamison initiated the 

start of A vonex for her enhancing lesions and recommended she see a neurosurgeon for her neck. 

Tr. 499. A few days later, Rambow had an appointment with ANP Tanya Scheiber-Mirek to 

discuss her MRl results and her continued neck and arm pain, during which time she was 

assessed with a herniated intervertebral disc. Tr. 433, 435. 

During April and May 2012, Rambow saw a couple physicians for her neck pain. Tr. 

490-96. After these appointments Rambow underwent a micro discectomy. Tr. 484-85. 

On April 6, 2012, Rambow filed for disability insurance benefits alleging disability 

Page 11 - FINDINGS AND RECOMMENDATION 
beginning October 25, 2008. Tr. 182-88. 

During July 2012, Rambow sought treatment for gastrointestinal bleeding. Tr. 424, 427, 

470, 546, 549, 556, 558, 577, 581. Rambow believed this was related to her use ofDiclofenac, 

and after emergency room doctors had her stop taking it her bleeding was resolved. Tr. 577. 

On July 5, 2012, Rambow completed an Adult Function Report. Tr. 235-42. Rambow 

wrote that the right side of her body was affected by her condition, and she gets "fatigued fairly 

easy." Tr. 235. She noted some difficulties performing personal care and receiving help from 

her son and son's girlfriend with caring for her dog, housework, and yard work. Tr. 236, 238. 

Rambow also wrote that she was able to prepare meals, go shopping, drive a car, and visits 

family and friends about two times a week. Tr. 237-39. 

During August 2012, Rambow had follow-up appointments with Dr. Jamison and Ms. 

Todd where she was treated for her new enhancing lesions, and her neck pain. Tr. 533, 543, 571, 

573, 597, 601. Dr. Jamison discussed the use of Gilenya for her MS because Rambow had 

become intolerant of Avonex and Copaxone. Tr. 601. 

On August 6, 2012, the Agency determined that Rambow was not disabled for purposes 

of the Act. Tr. 69-80. 

On February 13, 2013, the Agency found on reconsideration that Rambow was not 

disabled for purposes of the Act. Tr. 84-94. 

On April 30, 2013, Rambow requested a hearing before an ALJ. Tr. 111-18. 

On May 7, 2013, Rambow had an appointment with Dr. Jamison, who noted that 

Rambow had not tolerated the Gilenya, and was tearful, depressed, and having trouble with 

anxiety. Tr. 681. Dr. Jamison prescribed Venlafaxine for her anxiety, and a month later, wrote 

Page 12 - FINDINGS AND RECOMMENDATION 
that Rambow's depression and anxiety were "well treated" with the Venlafaxine. Tr. 682, 684. 

On September 19, 2013, Rambow returned for a follow-up appointment with NP Todd 

where she complained of fatigue and requested she be checked for arthritis in her hands, elbows, 

and wrists. Tr. 740. Ms. Todd assessed her with atthralgias6 in multiple sites, MS, and fatigue. 

Tr. 741. 

On November 28, 2013, Rambow was seen at the emergency department after being 

involved in a motor vehicle accident. Tr. 750. She complained of neck and back pain, stiffness, 

and some soreness in both hands. Id. She was discharged and advised to apply cold packs to her 

injuries, and to follow up with her primary care provider for persisting or worsening symptoms. 

Tr. 752. 

On February 21, 2014, Rambow had another visit with Dr. Jamison. Tr. 686. Dr. 

Jamison noted that Ram bow' s right leg "gives her trouble when she walks distances" and her 

fatigue is "a major issue." Id. Additionally, Dr. Jamison wrote that Rambow's anxiety attacks 

were "under control," noting that her depression and anxiety were well treated with Venflaxine, 

and additionally prescribed Amantadine for energy. Tr. 686-87. 

On Februaty 26, 2014, Rambow underwent a Psychodiagnostic Examination performed 

by Che1yl Brischetto, Ph.D. Tr. 607-12. Upon examination, Dr. Brischetto wrote that Rambow 

believed she was unable to work because she suffers from multiple sclerosis that causes right side 

weakness in her arms, legs, and hands, her balance is "off," she experiences pain in both of her 

hands, "fuzzy vision" in her right eye, and occasional urinaiy and bowel urgency. Tr. 607. 

6

Arthralgia is inflammation or pain from within the joint itself. Mayo Clinic, 

http://www.mayoclinic.org/symptoms/joint-pain/basics/definition/sym-20050668. 

Page 13 - FINDINGS AND RECOMMENDATION 
Ram bow additionally told Dr. Brischetto that her mood was "pretty good most of the time," that 

she "tries to be 'upbeat and positive,"' and she did not have cunent problems with her 

depression, noting her use of antidepressants. Id. With respect to her mental health limitations, 

Dr. Brischetto evaluated Rambow and noted she had "clear and coherent language," logical 

thinking, was ale1i and fully oriented, and did not appear to be in any acute emotional distress. 

Tr. 610-11. Dr. Brischetto wrote that Rambow "did not fit criteria for a Depressive Disorder or 

Anxiety Disorder" and diagnosed Rambow with rule out mild neurocognitive disorder due to 

multiple sclerosis. Tr. 611-12. 

On March 10, 2014, Rambow had an appointment with NP Mary Gibson. Tr. 755-58. 

Upon examination, Ms. Gibson noted that Rambow was previously diagnosed with MS, which 

appeared to be in remission, and wrote she had normal mood, affect, behavior, judgment and 

thought content. Tr. 755, 757. Ms. Gibson additionally noted that Rambow had lumps on her 

skin, mostly on her lower left arm, but found her left lower arm was non-tender on examination. 

Tr. 755. 

On June 30, 2014, Rambow had an x-ray taken of her right hand, which showed her right 

hand was intact with "no osseous or soft tissue abnormality identified," and "[n]o significant 

degenerative changes seen." Tr. 679. 

On July 16, 2014, Rambow had an appointment with FNP Andreana Gentile. Tr. 676-78. 

Ms. Gentile diagnosed Rambow with insomnia, unspecified, and prescribed Trazodone to help 

Rambow sleep. Tr. 676. 

On July 23, 2014, Dr. Jamison completed a Disability Questionnaire on behalf of 

Rambow. Tr. 689-93. Dr. Jamison wrote that Rambow suffered from multiple sclerosis, cervical 

Page 14 - FINDINGS AND RECOMMENDATION 
radiculopathy, depression, and anxiety. Tr. 689. He wrote that the primmy symptoms of her 

impairments were fatigue, which he described was of "disabling severity," right side weakness, 

and depression. Id. Dr. Jamison wrote that Ram bow did not suffer from functional limitations 

that limit the forceful or repetitive use of her aims or hands, and that she would be able to 

occasionally reach, and frequently handle, finger, and feel with both her hands. Tr. 690. Dr. 

Jamison limited Rambow to occasionally lifting thirty pounds; frequently canying twenty 

pounds; standing or walking for six hours in an eight-hour day; sitting for six hours in an 

eight-hour day; unlimited pushing and pulling; occasionally climbing, balancing, stooping, 

bending, and crouching; and never kneeling or crawling. Tr. 691. He thought Rambow might 

miss sixteen hours or more of work a month because of her impairments, symptoms, 

medications, and their side effects, but none of her symptoms would interfere with her ability to 

sustain basic attention and concentration needed to perform simple work tasks. Tr. 692. Overall, 

Dr. Jamison found that Rambow was "likely to find fatigue a problem" that would "limit her 

work hours." Tr. 693. A little over a week later, on July 31, 2014, Dr. Jamison completed a 

supplemental form clarifying his responses in the questionnaire. Tr. 833-34. On the 

supplemental form, Dr. Jamison checked the box "yes" that Rambow would be expected, on 

average, to miss at least eight hours per month from simple and routine sedentaty jobs due to her 

impairments, symptoms, medications, and their side effects. Tr. 833. 

On July 30, 2014, Rambow had an appointment with Dr. Joshua Leibovitz for complaints 

of right sided jaw pain. Tr. 820-26. Rambow described a "spontaneous onset" of her jaw feeling 

like it was out of aligmnent, and pain on both sides of her TMJ, pain opening her mouth, and 

having developed a headache. Tr. 820. Upon examination, Dr. Leibovitz found her external ear 

Page 15 - FINDINGS AND RECOMMENDATION 
and ear canal were normal, she had notmal mood and affect, and normal behavior and judgment. 

Tr. 822. Dr. Leibovitz recommended Rambow switch to a soft diet for the next one to two 

weeks, take ibuprofen and Hydrocodone for pain, and recommended using a night guard while 

sleeping. Tr. 823-24. 

On July 31, 2014, Rambow had a hearing before the ALJ. Tr. 34-68. At the hearing, she 

amended her alleged onset date to September 1, 2011. Tr. 48. She testified to suffering from 

anxiety, depression, fatigue, trouble with her right hand, and panic attacks. Tr. 41, 47, SO, 53-59. 

The ALJ asked VE Gaty Jesky to identify Rambow's past relevant work, which the VE identified 

included office manager and office specialist. Tr. 62. Next, the ALJ propounded hypotheticals 

to the VE, wherein the VE testified that a person with the given limitations could perform the 

past relevant work as an office specialist. Tr. 63-64. However, after adding the additional 

limitation that the individual would miss at least sixteen hours of work per month, the VE 

testified that an individual with that limitation would not be able to sustain competitive 

employment. Tr. 65. 

On August 29, 2014, the ALJ denied Rambow's application for DIB. Tr. 11-33. 

Rambow timely requested review of the ALJ's decision on October 24, 2014, and the Appeals 

Council denied her request on March 23, 2016. Tr. 1-6. In consequence, the ALJ's decision on 

October 24, 2014 became the Administration's final order for purposes of judicial review. See 

20 C.F.R. § 422.210(a); see also, e.g., Sims v. Apfel, 530 U.S. 103, 107 (2000). This action 

followed. 

SUMMARY OF ALJ FINDINGS 

At the first step of the five-step sequential evaluation process, the Administrative Law 

Page 16 - FINDINGS AND RECOMMENDATION 
Judge found that Rambow did not engage in substantial gainful activity since September 1, 2011, 

the alleged onset date. Tr. 17. She therefore proceeded appropriately to the second step of the 

analysis. 

At the second step, the ALJ found that Rambow' s medical impairments of multiple 

sclerosis and status post cervical fusion were "severe" for purposes of the Act. Tr. 17-18. 

Because the impairments caused by Rambow's MS and status post cervical fusion were deemed 

severe, the ALJ properly proceeded to the third step of the analysis. Id. 

At the third step, the ALJ found that none of Ram bow' s impairments was the equivalent 

of any of the impairments enumerated in 20 C.F.R. § 404, Subpart P, App. 1. Tr. 18. 

Specifically, the ALJ found that Rambow's MS did not meet or equal listing 11.09, and that she 

did not have the "disorganization of motor function" described in 11.04B, or the "visual or 

mental impairments as described under the criteria in 2.02, 2.03, 2.04, or 12.02." Id. 

Additionally, the ALJ found Rambow's status post cervical fusion did not meet or equal listing 

1.04, disorders of the spine, because there was "no evidence of nerve root compression, spinal 

arachnoiditis or lumbar spinal stenosis resulting in pseudoclaudication preventing the claimant 

from being able to ambulate effectively." Id. The ALJ therefore properly conducted an 

assessment ofRambow's residual functional capacity ("RFC"). 

Regarding Rambow's RFC, the ALJ found that prior to March 1, 2013, the date the 

claimant became disabled: 

the claimant had the residual functional capacity to perform less than the 

full range of light work as defined in 20 C.F.R. 404.1567(b), and 

specifically: she could frequently lift and/or carry up to ten pounds and 

occasionally lift and/or carry up to 20 pounds; she could stand or walk two 

hours at a time for up to six hours in an eight-hour-workday; she could 

Page 17 - FINDINGS AND RECOMMENDATION 
perform only occasional reaching at shoulder height and above bilaterally; 

she was limited to occasional climbing of ramps and stairs; she could not 

climb ladders, ropes, or scaffolding; she could occasionally balance, stoop, 

and crouch; she could never kneel or crawl; she needed to avoid exposure 

to extremes of heat and cold; she needed to avoid exposure to hazards such 

as unprotected heights and dangerous machine1y. 

Tr. 18-19. 

Next, the ALJ found that beginning on March 1, 2013: 

the claimant has the residual functional capacity to perform less than the 

full range of light work as defined in 20 CFR 404.1567(b), and 

specifically: she can frequently lift and/or cany up to ten pounds and 

occasionally lift and/or cany up to 20 pounds; she can stand or walk two 

hours at a time for up to six hours in an eight-hour-workday; she can sit 

for two hours at a time for up to six hours in an eight-hour-workday; she 

can perform only occasional reaching at shoulder height and above 

bilaterally; she is limited to occasional climbing of ramps and stairs; she 

cannot climb ladders, ropes, or scaffolding; she can occasionally balance, 

stoop, and crouch; she can never kneel or crawl; she needs to avoid 

exposure to extremes of heat and cold; she needs to avoid exposure to 

hazards such as unprotected heights and dangerous machine1y. Because of 

fatigue from MS, she would miss at least 16 hours of work per month. 

Tr. 23-25. In reaching these findings, the ALJ considered all of the material objective medical 

evidence in the record bearing directly upon Ram bow' s asserted impairments, as well as 

Rambow's own statements regarding her symptoms. Tr. 18-25. 

At the fourth step of the five-step process, the ALJ found that prior to March 1, 2013, 

Rambow was capable of performing her past relevant work as an office specialist, but beginning 

March 1, 2013, Ram bow' s RFC prevented her from being able to perform her past relevant work. 

Tr. 25. 

At the fifth step, the ALJ found that since March 1, 2013, in light of Ram bow' s age, 

education, work experience, and RFC there were no jobs existing in significant numbers in the 

Page 18 - FINDINGS AND RECOMMENDATION 
national economy that she could perform. Tr. 26. On that basis, the ALJ concluded that 

Rambow "was not disabled prior to March 1, 2013, but became disabled on that date and has 

continued to be disabled through the date of [her] decision." Id. 

ANALYSIS 

Ram bow challenges the Commissioner's conclusion of her ability to perform her past 

relevant work as an office specialist prior to March 1, 2013 on several grounds. Ram bow argues 

that the ALJ failed to: (1) find her depression, anxiety, and "rule out" neurocognitive disorders 

were severe impairments at step two of the five-step sequential evaluation process; (2) fully and 

fairly develop the record; (3) properly credit the medical opinion of treating neurologist, Dr. 

Kevin Jamison and examining psychologist, Dr. Cheryl Brischetto, Ph.D.; ( 4) provide a clear and 

convincing reason to discredit her subjective symptom testimony; (5) provide a legally sufficient 

reason to reject lay witness testimony; (6) develop an RFC supported by the record; and (7) 

propound a hypothetical to the vocational expe1t ("VE") suppo1ted by the record, thus ening in 

relying on the VE's testimony that she could perform her past relevant work prior to becoming 

disabled beginning March 1, 2013. 

I. The ALJ's Step Two Findings 

Rambow argues that the ALJ erred by failing to find her depression, anxiety, and rule out 

neurocognitive disorder were severe impairments at step two, and as a result, both formulated an 

inaccurate RFC, and posed hypotheticals to the VE that did not reflect all of her limitations. Pl.'s 

Opening Br. 2-21, Pl.'s Reply Br. 1-5. 

At step two of the sequential analysis, the ALJ determines whether the claimant has a 

medically determinable impairment or combination of impahments. 20 C.F .R. § 404.1520( a). A 

Page 19 - FINDINGS AND RECOMMENDATION 
medically determinable impairment is deemed "severe" if it "significantly limits the claimant's 

ability to do basic work activities." 20 C.F.R. § 404.1520(a)(4)(ii).7 Step two findings must be 

based upon medical evidence. Id. "Omissions at step two are harmless if the ALJ' s subsequent 

evaluation considered the effect of the impairment omitted at step two." Harrison v. Astrue, 

2011WL2619504, *7 (D. Or. July 1, 2011) (citing Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 

2007)). 

In supp01t of her contention that her depression, anxiety, and rule out neurocognitive 

disorder were "severe" medically determinable impairments, Rambow cites the medical opinion 

evidence of Dr. Kevin Jamison; NP Debra Todd; Dr. Chetyl Brischetto, Ph.D.; Dr. Dorothy 

Anderson, Ph.D.; and Dr. Michael Dennis, Ph.D .. Pl.'s Opening Br. 2. However, the ALJ 

reasonably found none of her mental impairments were severe. 

A. Rainbow's Depression and Anxiety 

Here, the ALJ evaluated Rambow's depression, anxiety, and panic disorder, overall 

finding that Rambow had only mild restrictions in activities of daily living, mild difficulties in 

maintaining social functioning, mild difficulties maintaining concentration, persistence, and 

pace, and no periods of decompensation. Tr. 17. In making these findings, the ALJ cited 

7

"Basic work activities are the abilities and aptitudes necessaty to do most jobs. 

Examples of these include -

(1) Physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, 

carrying, or handling; 

(2) Capacities for seeing, hearing, and speaking; 

(3) Understanding, canying out, and remembering simple instructions; 

(4) Use of judgment; 

(5) Responding appropriately to supervision, co-workers and usual work situations; and 

( 6) Dealing with changes in a routine work setting." 

20 C.F.R. § 404.1521(a). 

Page 20 - FINDINGS AND RECOMMENDATION 
numerous medical records and reports. 

First, the ALJ noted that Rambow lived alone, drove, shopped, prepared meals, and 

managed her finances. Id. "An impairment or combination of impairments is not severe if it 

does not significantly limit your physical or mental ability to do basic work activities." 20 C.F.R. 

§ 404.152l(a). Next, the ALJ considered the medical opinion of Dr. Jamison who "never noted 

any cognitive deficits on examination." Tr. 17. Third, the ALJ wrote that Rambow had never 

been hospitalized for mental health treatment, nor sought or received mental health counseling. 

Tr. 17-18. Fomih, the ALJ noted a 2014 psychological examination perfotmed by Dr. Brischetto 

where Rambow "reported that her mood was 'pretty good most of the time,' and she tried to be 

'upbeat and positive."' Tr. 18. Finally, the ALJ found that Rambow was using antidepressants, 

reported no current problems with depression, and fmiher noted that medical records showed 

Ram bow' s depression and anxiety disorders were "well controlled with Effexor and an 

occasional tab ofKlonopin." Id. "Impairments that can be controlled effectively with 

medication are not disabling." Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th 

Cir. 2006) (citations omitted). Indeed, an independent review of the medical record supports the 

ALJ' s findings. Additionally, any error is harmless because the ALJ considered Rambow' s 

depression and anxiety when evaluating her RFC. See Tr. 22-23; see also Harrison, 2011 WL 

2619504, *7 (step two omissions are harmless where the ALJ considered the effect of the 

impairment during the subsequent evaluation.) In sum, the ALJ provided substantial evidence to 

show that Rambow's depression and anxiety were not severe impairments at step two. 

B. Rambow 's Rule Out Neurocognitive Disorder 

Next, Rambow argues the ALJ ened by failing to find her rule out neurocognitive 

Page 21 - FINDINGS AND RECOMMENDATION 
disorder was a "medically determinable" or "severe" impairment at step two. Pl.'s Opening Br. 

4, Pl.'s Reply Br. 1-5. Here, the ALJ noted Dr. Brischetto's diagnosis ofrnle out neurocognitive 

disorder, but did not find it was a severe impairment. Tr. 18. Although the ALJ failed to make 

any specific findings regarding Rambow's rule out neurocognitive disorder, again any alleged 

error is harmless because the ALJ found Rambow had other severe impairments at step two, 

continued with the sequential analysis, and reasonably considered the medical opinions 

concerning her alleged mental health limitations when evaluating Rambow's RFC. Tr. 22-23, 

see also Stout v. Comm 'r Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (an ALJ's 

mistake is harmless where it is nonprejudicial to the claimant). There is no error. 

II. ALJ's Duty to Develop the Record 

Alternatively, Rambow argues that the ALJ erred by failing to "fully and fairly develop 

the record" because she failed to order "additional psychological evaluation or testing regarding a 

potential cognitive disorder" based on Dr. Brischetto' s diagnosis of rule out neurocognitive 

disorder. Pl.'s Opening Br. 4, Pl.'s Reply Br. 1, 3-5. 

The ALJ has an independent duty to fully and fairly develop the record, whether or not 

the claimant is represented by counsel. Smolen, 80 F.3d at 1283. However, the duty to fu11her 

develop the record is only required where "there is ambiguous evidence or when the record is 

inadequate to allow for proper evaluation of the evidence." Mayes v. Massanari, 276 F.3d 454, 

460 (9th Cir. 2001); see also McLeodv. Astrue, 640 F.3d 881, 885 (9th Cir. 2010). 

Rambow argues that the ALJ was required to further develop the record and order 

additional psychological testing based on Dr. Brischetto's findings of rule out neurocognitive 

disorder, but this comi disagrees. This court finds the medical evidence was neither ambiguous, 

Page 22- FINDINGS AND RECOMMENDATION 
nor inadequate to allow for a proper evaluation of the evidence. Here, Dr. Brischetto used only 

equivocal language to describe the need for additional testing, writing that Rambow "might want 

to be considered for a neuropsychological screening" if "more specific information is needed 

about cognition," yet made no specific finding that Rambow needed additional testing performed. 

Tr. 612 (emphasis added). Overall, "the ALJ is the final arbiter with respect to resolving 

ambiguities in the medical evidence." Tommasetti v. Astrue, 533 F.3d 1035, 1041-42 (9th Cir. 

2008) (citing Andrews v. Shala/a, 53 F.3d 1035, 1039-40 (9th Cir. 1995). Here, the ALJ 

reasonably assessed the medical opinion evidence concerning Ram bow' s mental health 

impairments and found they were not severe, as discussed above. Tr. 17. Although Rambow 

disagrees with the ALJ's interpretation of the medical record, "[w]hen the evidence before the 

ALJ is subject to more than one rational interpretation, we must defer to the ALJ's conclusion." 

Batson, 359 F.3d at 1198. Therefore, the court finds the ALJ reasonably evaluated Rambow's 

cognitive abilities, as discussed above, and was not required to further develop the record. There 

is no error. 

III. Evaluation of Medical Opinion Evidence 

Next, Rambow argues that the ALJ erred by failing to provide a legally sufficient reason 

to reject the medical opinion evidence of treating neurologist, Dr. Kevin Jamison, and examining 

psychologist, Dr. Cheryl Brischetto. Pl.'s Opening Br. 21-25, Pl's Reply Br. 10-12. 

An ALJ may reject the uncontradicted medical opinion of a treating or examining 

physician only for "clear and convincing" reasons supported by substantial evidence in the 

record. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citing Lester v. Chafer, 81 

F.3d 821, 830-31 (9th Cir. 1995)). An ALJ may reject the contradicted opinion of a treating or 

Page 23 - FINDINGS AND RECOMMENDATION 
examining doctor by providing "specific and legitimate reasons that are supported by substantial 

evidence.'' Id. 

A. Treating Neurologist, Dr. Kevin Jamison 

First, Rambow argues that the ALJ failed to address Dr. Jamison's opinion that 

Rambow' s "pain, fatigue, and weakness would interfere with the attention and concentration 

needed to perform even simple work tasks for up to 1/3 of a workday," and she would "miss at 

least 8 hours ... per month from even a simple routine sedentaty job." Pl.'s Opening Br. 22-23. 

Specifically, Rambow argues that the ALJ needed to provide a clear and convincing reason for 

rejecting this patt of Dr. Jamison's medical opinion. Pl.'s Opening Br. 23, Pl.'s Reply Br. 10-12. 

As an initial matter, this coutt rejects Rambow's argument that the ALJ was required to 

provide a clear and convincing reason to reject the medical opinion of Dr. Jamison, because the 

court finds Dr. Jamison's medical opinion was contradicted by the medical opinions of reviewing 

physicians Dr. Neal Berner and Dr. Mattin Lalu'. See Tr. 76-80, 89-91; see also Bayliss, 427 

F.3d at 1216 (an ALJ need only provide a specific and legitimate reason to discount the 

contradicted opinion of a treating or examining doctor.) Because Dr. Jamison's medical opinion 

was contradicted the ALJ was only required to give a specific and legitimate reason for 

discrediting it. 

Next, the court rejects Rambow's argument that the ALJ failed to address Dr. Jamison's 

opinion that Ram bow' s "pain, fatigue, and weakness would interfere with the attention and 

concentration required to perform simple work tasks for up to 1/3 of a workday." Pl.' s Opening 

Br. 22. Here, the ALJ specifically noted these findings in her decision, writing that Rambow's 

"pain, fatigue, and weakness would occasionally interfere with attention and concentration for 

Page 24 - FINDINGS AND RECOMMENDATION 
even simple work tasks" and "claimant's attention and concentration would be impaired 10% of 

the workweek." Tr. 25. The court fails to see how the ALJ did not address this part of Dr. 

Jamison's medical opinion given her direct mention ofit. 

Finally, the court finds the ALJ did not err in failing to provide a legally sufficient reason 

for rejecting Dr. Jamison's medical opinion when assessing Rambow's RFC. The ALJ did not 

reject Dr. Jamison's medical opinion, but merely gave it "some weight," noting "it is somewhat 

consistent with the record beginning in March 1, 2013." Tr. 25. Here, the ALJ considered Dr. 

Jamison's medical opinion when evaluating Rambow's RFC and overall included Dr. Jamison's 

findings in the RFC assessment, specifically noting that Rambow would miss at least 16 hours of 

work per month. Tr. 23-24. The ALJ reasonably considered Dr. Jamison's medical opinion and 

there is no error. Additionally, any alleged error is harmless because the ALJ determined 

Rambow was disabled beginning March 1, 2013, based on the RFC assessment that included Dr. 

Jamison's medical opinion from July 23, 2014, which was at issue. 

B. Examining Psychologist, Dr. Che1yl Brischetto 

Next, Rambow argues that the ALJ failed to provide a legally sufficient reason to reject 

Dr. Brischetto' s medical opinion that Ram bow had "moderate impairment in understanding, 

remembering, and carrying out complex instructions" and in her "ability to make judgments on 

complex work related decisions." Pl. 's Opening Br. 24, Pl.'s Reply Br. 11-12. 

Here, the ALJ considered Dr. Brischetto's Februaty 2014 examinations, but gave her 

medical opinion "little weight" finding that her findings were inconsistent with her own 

examination conclusions that Rambow was not diagnosed with any mental health impairment. 

Tr. 22. An ALJ may find inconsistency between a doctor's chart notes and the doctor's ultimate 

Page 25 - FINDINGS AND RECOMMENDATION 
opinion a valid reason to reject their opinion. See Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th 

Cir. 2014) (citations omitted). Indeed, an independent review of the record supports the ALJ's 

finding. See Tr. 604, 607-12. The ALJ provided a legally sufficient reason to reject Dr. 

Brischetto' s medical opinion. Therefore the court finds no etrnr. 

IV. Rambow's Subjective Symptom Testimony 

Next, Rambow contends the ALJ failed to provide a clear and convincing reason for 

discrediting her subjective symptom testimony. Pl.'s Opening Br. 25-30, Pl.'s Reply Br. 12. 

Specifically, Rambow argues that the ALJ erred by finding her depression and anxiety not 

"severe" based on her activities of daily living which included driving, shopping, living alone, 

and managing her finances. Pl.'s Opening Br. 25. Additionally, Rambow argues that the ALJ 

offered no additional reasons to discredit her testimony about how she became disabled as of 

September 1, 2011, arguing that the ALJ offered "only conclusions and implications, not clear 

and convincing reasons." Pl.'s Opening Br. 29. 

If "there is no affirmative evidence of malingering, 'the ALJ can reject the claimant's 

testimony about the severity of her symptoms only by offering specific, clear and convincing 

reasons for doing so."' Tommasetti, 533 F.3d at 1039 (quoting Smolen, 80 F.3d at 1281, 

1283-84). A general assertion that the claimant is not credible is insufficient; the ALJ must 

"state which ... testimony is not credible and what evidence suggests the complaints are not 

credible." Dodrill v. Shala/a, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered must be 

"sufficiently specific to permit the reviewing comt 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). 

Page 26 - FINDINGS AND RECOMMENDATION 
At the hearing, Rambow testified that she had difficulty with anxiety, fatigue, and 

problems with her right hand. Tr. 41, 49-54. She also testified that she has good and bad days, 

and on bad days she would watch TV all day. Tr. 55. Rambow testified that she gets too tired to 

get things done, relies on her left hand to do the majority of things, and experiences panic attacks 

about once a week. Tr. 56-58. 

First, the comt rejects the first patt ofRambow's argument, noting that Rambow 

essentially requests another review of the ALJ' s step two findings regarding the severity of her 

alleged impairments. Since the court found no error at step two, the court need not address this 

issue again. 

With respect to the second patt ofRambow's argument, the comt finds the ALJ provided 

a clear and convincing reason, supported by substantial evidence, to reject Rambow's subjective 

symptom testimony relating to the time period at issue: the alleged onset date of September 1, 

2011 through Mai·ch 1, 2013, the date the ALJ found was disabled. Here, the ALJ found that 

Ram bow' s "medically determinable impairments could reasonably be expected to cause some of 

the alleged symptoms prior to March 1, 2013 ," yet her statements "concerning the intensity, 

persistence and limiting effects of her symptoms are not entirely credible prior to March 1, 

2013." Tr. 19. The ALJ foUlld Rambow was "pat1ially credible" noting that her testimony was 

not consistent with medical records prior to March 1, 2013. Tr. 23. Specifically, the ALJ noted 

that Rambow testified to having "severe hand limitations and fatigue," but found the record 

reflected that she "rarely complained of these problems prior to March 1, 2013." Id. "Although 

lack of medical evidence cannot form the sole basis for discrediting pain testimony, it is a factor 

that the ALJ can consider in his credibility analysis." Burch v. Barnhart, 400 F.3d 676, 681 (9th 

Page 27 - FINDINGS AND RECOMMENDATION 
Cir. 2005). Additionally, the ALJ noted that Rambow gave "dramatic testimony regarding her 

anxiety and depression symptoms," which the ALJ found contradicted treatment notes and 

evidence that her mental health symptoms were well controlled with medication. Tr. 23. The 

effectiveness of medications is a factor the ALJ may consider when evaluating a claimant's 

subjective symptom testimony. See Orteza, 50 F.3d at 750. Although Rambow complained of 

hand numbness, fatigue, depression, and anxiety, the ALJ reasonably found her limitations were 

not supported by the record. Indeed, prior to March 1, 2013, the medical record shows numerous 

reports ofRambow's MS described as "stable," having full strength in her extremities, and 

exhibiting only "mild depression," which had been controlled by Effexor in the past. See Tr. 

298, 360, 362, 367, 462, 522, 524-25. While variable interpretations of this evidence may exist, 

the ALJ's analysis was nonetheless reasonable, such that it must be upheld. See Batson, 359 

F.3d at 1198. In sum, the ALJ provided a clear and convincing reason, supported by substantial 

evidence, for rejecting Rambow's subjective symptom testimony. 

V. Lay Witness Testimony 

Next, Rambow argues that the ALJ erred by failing to provide a legally sufficient reason 

to reject the lay witness testimony of Tyler Ellis and Sarah Hanson. Despite Ram bow' s 

asse1tion, the comt finds she has waived this argument. See Carmickle v. Comm 'r Soc. Sec. 

Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (citing Paladin Assocs., Inc. v. Mont. Power 

Co., 328 F.3d 1145, 1164 (9th Cir. 2003) ("noting that we 'ordinarily will not consider matters 

on appeal that are not specifically and distinctly argued in a appellant's opening brief"). Here, 

Rambow included her argument as a heading in her opening brief, but made no other substantive 

argument. See Pl.'s Opening Br. 25. For this reason, the court concludes that Rambow waives 

Page 28 - FINDINGS AND RECOMMENDATION 
this argument, and therefore need not address it. 

VI. RFC Assessment 

Next, Rambow argues that the ALJ erred in formulating her RFC because it did not 

include all of her limitations. Pl. 's Opening Br. 31. 

The RFC is the maximum a claimant can do despite his limitations. See 20 C.F.R. § 

404.1545. In determining the RFC, the ALJ must consider limitations imposed by all of 

claimant's impairments, even those that are not severe, and evaluate "all of the relevant medical 

and other evidence," including the claimant's testimony. SSR 96-8p. The ALJ is responsible for 

resolving conflicts in the medical testimony and translating the claimant's impairments into 

concrete functional limitations in the RFC. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 

(9th Cir. 2008). Only limitations supported by substantial evidence must be incorporated into the 

RFC and, by extension, the dispositive hypothetical questions posed to the VE. Osenbrock v. 

Apfel, 240 F.3d 1157, 1163-65 (9th Cir. 2001). 

Here, the ALJ reasonably discredited Rambow' s testimony and addressed the medical 

opinions of Dr. Jamison and Dr. Brischetto. Therefore, the ALJ reasonably determined 

Rambow's RFC assessment with respect to the limitations suppo1ted by the medical records. Tr. 

18-25. There is no error. 

VII. VE Hypothetical 

Finally, Rambow argues that the VE's testimony was unsuppo1ted by law and fact 

because the ALJ' s RFC assessment failed to include all of the limitations from all of her 

impairments. Pl.' s Opening Br. 31. 

"At step four of the sequential analysis, the claimant has the burden to prove he cannot 

Page 29 - FINDINGS AND RECOMMENDATION 
perform his prior relevant work 'either as actually performed or as generally performed in the 

national economy."' Carmickle, 533 F.3d at 1166 (citation omitted). "Although the burden of 

proof lies with the claimant at step four, the ALJ still has the duty to make the requisite factual 

findings to supp01ihis conclusion." Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001). The 

ALJ may call a VE to testify at the hearing to present expeti opinion evidence identifying 

occupations listed in the Dictionary of Occupational Titles that a claimant retains the capacity to 

perform given his RFC. Valentine v. Comm 'r Soc. Sec. Adm in., 574 F.3d 685, 689 (9th Cir. 

2009). The VE's testimony may also cover a claimant's ability to perform past relevant work, as 

generally performed in the national economy, or as actually performed by the claimant. Pinto, 

249 F.3d at 845. 

Typically, the ALJ propounds a hypothetical question to the VE that is based on medical 

assumptions supported by the record and reflects all of the claimant's limitations. Osenbrock, 

240 F.3d at 1163-64. If the claimant fails to present evidence that she suffers from certain 

limitations, the ALJ need not include those alleged impairments in the hypothetical question to 

the VE. Id 

Here, the ALJ propounded a hypothetical to the VE based on the RFC finding. Tr. 63-65. 

Under the hypothetical, the VE found that prior to March 1, 2013, Rambow could perform her 

past relevant work as an office specialist. Tr. 25. As discussed above, the ALJ reasonably 

assessed Rambow's subjective symptom testimony and the medical evidence ofrecord when 

assessing Rambow's RFC. Therefore, the hypothetical propounded to the VE inc01porated all of 

Rambow's limitations, and the ALJ did not err in relying on the VE's testimony. 

Ill 

Page 30 - FINDINGS AND RECOMMENDATION 
CONCLUSION 

For the reasons set forth above, the Commissioner's final decision denying Rambow's 

application for disability insurance benefits should be affirmed. A final judgment should be 

prepared. 

SCHEDULING ORDER 

The Findings and Recommendation will be referred to a district judge. Objections, if any, 

are due fourteen (14) days from service of the Findings and Recommendation. Ifno objections 

are filed, then the Findings and Recommendation will go under advisement on that date. 

If objections are filed, then a response is due fourteen (14) days after being served with a 

copy of the objections. When the response is due or filed, whichever date is earlier, the Findings 

and Recommendation will go under advisement. 

Dated this 31st day of August, 2017. 

onorable Paul Papak 

United States Magistrate Judge 

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