Burky v. Commissioner of Social Security Administration

Filing 22

ORDER: the final decision of the Commissioner of Social Security is affirmed; the Clerk shall enter judgment accordingly and terminate this case. Signed by Judge Douglas L Rayes on 7/27/16. (REW)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Rodney Burky, No. CV-15-08190-PCT-DLR Plaintiff, 10 11 v. 12 Commissioner Administration, ORDER 13 14 of Social Security Defendant. 15 16 Plaintiff Rodney Burky seeks review under 42 U.S.C. § 405(g) of the final 17 decision of the Commissioner of Social Security (Commissioner) denying his application 18 for supplemental security income and disability insurance benefits. Because the decision 19 of the Administrative Law Judge (ALJ) is supported by substantial evidence and is not 20 based on legal error, the Commissioner’s decision is affirmed. 21 I. Background 22 A. Factual Background 23 Burky is 49 years old and has a ninth grade education. (A.R. 33.) He previously 24 worked as donation taker, groundskeeper, car washer, stone polisher, and painter. Burky 25 has been diagnosed as bipolar and schizophrenic. He last worked in 2011. (Id. at 221.) 26 B. Procedural History 27 On August 29, 2012, Burky applied for disability insurance benefits and 28 supplemental security income, alleging disability beginning June 25, 2012. (Id. at 15.) 1 On June 17, 2014, he appeared with his attorney and testified at a hearing before the ALJ. 2 A vocational expert also testified. 3 On October 14, 2014, the ALJ issued a decision that Burky was not disabled 4 within the meaning of the Social Security Act. The Appeals Counsel denied Burky’s 5 request for review of the hearing decision, making the ALJ’s decision the 6 Commissioner’s final decision. On September 28, 2015, Burky sought review by this 7 Court. 8 II. Legal Standard 9 The district court reviews only those issues raised by the party challenging the 10 ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court 11 may set aside the Commissioner’s disability determination only if the determination is 12 not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 13 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a 14 preponderance, and relevant evidence that a reasonable person might accept as adequate 15 to support a conclusion considering the record as a whole. Id. In determining whether 16 substantial evidence supports a decision, the court must consider the record as a whole 17 and may not affirm simply by isolating a “specific quantum of supporting evidence.” Id. 18 As a general rule, “[w]here the evidence is susceptible to more than one rational 19 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be 20 upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted). 21 III. Five-Step Sequential Evaluation Process 22 To determine whether a claimant is disabled for purposes of the Social Security 23 Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears 24 the burden of proof on the first four steps, but at step five, the burden shifts to the 25 Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 26 At the first step, the ALJ determines whether the claimant is engaging in 27 substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not 28 disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant -2- 1 has 2 § 404.1520(a)(4)(ii). If not, the claimant is not disabled and the inquiry ends. Id. At step 3 three, the ALJ considers whether the claimant’s impairment or combination of 4 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 5 of 20 C.F.R. Pt. 404. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to 6 be disabled. Id. If not, the ALJ proceeds to step four. At step four, the ALJ assesses the 7 claimant’s residual functional capacity (“RFC”) and determines whether the claimant is 8 still capable of performing past relevant work. § 404.1520(a)(4)(iv). If so, the claimant 9 is not disabled and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final 10 step, where he determines whether the claimant can perform any other work based on the 11 claimant’s RFC, age, education, and work experience. § 404.1520(a)(4)(v). If so, the 12 claimant is not disabled. Id. If not, the claimant is disabled. Id. a “severe” medically determinable physical or mental impairment. 13 At step one, the ALJ found that Burky meets the insured status requirements of the 14 Social Security Act through December 31, 2013, and that he has not engaged in 15 substantial gainful activity since June 25, 2012. (A.R. 17.) At step two, the ALJ found 16 that Burky has the following severe impairments: bipolar disorder, schizophrenia, panic 17 disorder with agoraphobia, and antisocial personality disorder. (Id.) At step three, the 18 ALJ determined that Burky does not have an impairment or combination of impairments 19 that meets or medically equals an impairment listed in Appendix 1 to Subpart P of 20 20 C.F.R. Pt. 404. (Id. at 18.) 21 At step four, the ALJ found that Burky has the RFC to perform “a full range of 22 work at all exertional levels but with the following nonexertional limitations: he is 23 limited to work requiring only occasional interaction with co-workers and supervisors, 24 and no direct contact with the public.” (Id. at 20.) Accordingly, given his RFC, the ALJ 25 concluded that Burky is capable of performing his past relevant work as a painter and 26 stone polisher. (Id. at 23.) 27 IV. Analysis 28 Burky argues the ALJ’s decision is unsupported by substantial evidence because -3- 1 the ALJ (1) improperly discounted the medical opinion of Dr. Lisa Parsons, (2) erred in 2 finding that Burky’s work as a painter and stone polisher qualified as past relevant work, 3 and (3) improperly discounted Burky’s credibility regarding the severity of his 4 symptoms. (Doc. 16 at 4-5.) The Court will address each in turn. 5 A. The ALJ Did Not Err in Evaluating the Medical Source Evidence 6 The ALJ is responsible for resolving conflicts in medical testimony. Andrews v. 7 Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Generally, more weight should be given to 8 the opinion of a treating physician than to the opinions of non-treating physicians. Lester 9 v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Where a treating physician’s opinion is not 10 contradicted by another physician, it may be rejected only for “clear and convincing” 11 reasons, and where it is contradicted, it may not be rejected without “specific and 12 legitimate reasons” supported by substantial evidence in the record. Id. Likewise, an 13 examining physician’s opinion generally must be given greater weight than that of a non- 14 examining physician. Id. at 830. As with a treating physician, there must be clear and 15 convincing reasons for rejecting the uncontradicted opinion of an examining physician, 16 and specific and legitimate reasons, supported by substantial evidence in the record, for 17 rejecting an examining physician’s contradicted opinion. Id. at 830-31. 18 Dr. Parsons, a psychiatrist, treated Burky for approximately two years. (A.R. 21.) 19 In support of Burky’s claim, Dr. Parsons completed a “Mental Ability to Do Work- 20 Related Activities Form.” (Id. at 323-24.) Therein, she concluded that Burky had a poor 21 ability to follow work rules; relate to co-workers; deal with the public; interact with 22 supervisors; deal with work stresses; function independently; maintain attention and 23 concentration; understand, remember and carry out detailed, but not complex, job 24 instructions; and understand, remember and carry out simple job instructions. (Id.) Dr. 25 Parsons cited “severe anxiety with panic attacks that lead to agoraphobia” and “extreme 26 anxiety” as the findings that supported her assessment. (Id.) In addition, the assessment 27 covered the period from June 25, 2016, the date in which Burky first saw Dr. Parsons, 28 through January 31, 2013. (Id. at 324.) -4- 1 Dr. Parsons’ opinion was contradicted by the opinion of Dr. Shannon Tromp, who 2 assessed less severe mental limitations. (Id. at 311-16.) Unlike Dr. Parsons, Dr. Tromp 3 found that Burky had no impairment in his ability to understand and remember simple 4 instructions, detailed instructions, and work-like procedures or responding appropriately 5 to changes in the workplace. (Id.) Therefore, the ALJ was required to provide specific 6 and legitimate reasons supported by substantial evidence for discounting Dr. Parsons’ 7 opinions. See Lester, 81 F.3d at 830.1 8 The ALJ did not give significant weight to Dr. Parsons’ opinion because it was 9 inconsistent with the medical evidence in the record and failed to account for Burky’s 10 recent improvement. (A.R. 22.) Inconsistency with the medical record is a sufficient 11 basis for discounting medical source evidence. Batson v. Comm’r of Social Sec. Admin., 12 359 F.3d 1190, 1195 (9th Cir. 2004). The ALJ concluded that the assessment conflicted 13 with Dr. Parsons’ treatment notes. 14 extreme anxiety, which would made concentration difficult. But prior to the assessment, 15 she “consistently noted a lack of cognitive defects on the mental status examinations.” 16 (A.R. 22.) Indeed, in June, August, and October of 2012, Dr. Parsons noted Burky had 17 “immediate recall,” “intelligence equals fund of knowledge,” logical thought process, and 18 no problems with recent or remote memory. 19 assessment, she concluded that Burky had poor ability to remember, understand, and 20 carry out simple and complex work instructions. (Id. at 324.) Moreover, the same day 21 she completed the assessment, her treatment notes indicate no problems with cognition. 22 (Id. at 389.)2 23 Specifically, Dr. Parsons noted that Burky has (Id. at 300, 305, 394.) Yet in the In addition, Dr. Parsons found that Burky had poor ability to relate to coworkers 24 25 26 27 1 Burky argues Dr. Parsons’ opinion was uncontradicted, and therefore the clear and convincing reasons standard applies. (Doc. 21 at 3.) But Dr. Tromp’s conclusions regarding memory, understanding, and adapting to change contradict Dr. Parsons’ conclusion that Burky has poor ability in those areas. 2 28 Moreover, Dr. Tromp found no cognitive impairments. (A.R. 314.) Burky’s thought process was logical and goal directed, comprehension was good, and he had no perceptual abnormalities. (Id.) -5- 1 and interact with supervisors. (Id. at 323.) But her treatment notes consistently indicate 2 that Burky was “at ease,” “calm,” “relaxed,” and “cooperative” during the examinations. 3 (Id. at 300, 305, 394, 389.) She also noted that Burky was “engaging,” “interested,” had 4 appropriate eye contact, laughed appropriately, and had “relaxed posture.” (Id. at 300, 5 305, 394.) 6 working because they cannot interact with coworkers or supervisors. These observations are inconsistent with someone who is incapable of 7 The ALJ also concluded that the assessment was inconsistent with Burky’s 8 apparent improvement, which is evidenced by Dr. Parsons’ treatment notes. (Id. at 22.) 9 In May 2013, after the assessment was completed, Burky reported that he was “doing 10 good actually,” his mood was “alright,” and that he was “handling things ok.” (Id. at 11 385.) In August 2013, Burky appears to have taken a step back, noting that he is upset 12 from being denied social security. (Id. at 456.) Nonetheless, Dr. Parsons noted that he 13 was “mak[ing] progress towards treatment goals.” (Id. at 457.) In January 2014, Burky 14 claimed he was enjoying life, that his anxiety was “not too bad,” and that he was doing “a 15 little better than normal.” (Id. at 479.) The treatment notes are inconsistent with Dr. 16 Parsons’ 2013 assessment and evidence at least some improvement in Burky’s condition. 17 Burky argues that Dr. Parsons’ opinion is consistent with the record, and therefore 18 should have been afforded great weight. (Doc. 16 at 13.) But Burky merely offers his 19 own interpretation of the evidence. This is the ALJ’s responsibility, see Andrews, 53 20 F.3d at 1039 (noting that it is the ALJ’s duty to interpret and resolve inconsistencies in 21 the medical evidence), and the Court will not disturb the ALJ’s findings where his 22 interpretation of the evidence is reasonable given the evidence in the record. See Batson 23 v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004) (noting that “the 24 Commissioner’s findings are upheld if supported by inferences reasonably drawn from 25 the record, and if evidence exists to support more than one rational interpretation, we 26 must defer to the Commissioner’s decision”). Accordingly, the Court finds the ALJ set 27 forth specific and legitimate reasons supported by substantial evidence for discounting 28 -6- 1 Dr. Parsons’ opinion. See Lester, 81 F.3d at 830.3 2 B. The ALJ Did Not Err In Finding Burky Could Perform Past Work 3 At step four, the ALJ found that, given his RFC, Burky could perform his past 4 relevant work. (A.R. 23.) Burky argues the ALJ erred by finding that his previous work 5 as a stone polisher and painter constituted past relevant work because he did not earn 6 enough for a sufficient duration. (Doc. 16 at 14.) The Commissioner appears to concede 7 that Burky’s past work as a stone polisher does not qualify as past relevant work. (Doc. 8 20 at 7-8.) It argues, however, that this error is harmless because Burky’s past work as a 9 painter qualifies as past relevant work. 10 Past relevant work is defined as “work that you have done within the past 15 11 years, that was substantial gainful activity, and that lasted long enough for you to learn to 12 do it.” 20 C.F.R. § 404.1560(b)(1). “The [SSA] grants to the Secretary the authority to 13 determine when labor performed or earnings derived from labor constitute the ability to 14 engage in substantial gainful activity.” Byington v. Chater, 76 F.3d 246, 248 (9th Cir. 15 1996) (citing 42 U.S.C. § 423(d)(4)). “[E]arnings are a factor in a determination of 16 whether [a claimant’s] work amounted to substantial gainful activity, but as the 17 regulations make clear, are not determinative.” 18 404.1575(a)). 19 presumption exists that the activity did not constitute substantial gainful employment. 20 Baxla v. Colvin, 45 F. Supp. 3d 1116, 1136 (D. Ariz. 2014). Id. at 250 (citing 20 C.F.R. § If monthly earnings fall below a certain threshold, a rebuttable 21 Burky worked as a painter throughout 2003, earning $14,141.25, or $1,178.44 per 22 month. Throughout 2004, he worked at two different painting companies and earned a 23 total of $17,979.50, or $1,498.29 per month. 24 $21,047.75, or $1,753.98 per month. Burky also appears to have worked as a painter 25 from 2006 through 2008, however, he earned far less during those years, and thus it is Throughout 2005, Burky earned 26 27 28 3 The Court also notes that Dr. Parsons’ findings appear to be based largely on Burky’s description of his symptoms. There are no clinical tests that support the diagnoses, which makes it difficult to distinguish Burky’s self-reports from actual clinical findings. -7- 1 likely this work does not qualify as substantial gainful activity. (A.R. 198-99.) As such, 2 the Court will analyze only whether Burky’s work as a painter from 2003 to 2005 3 qualifies as past relevant work. 4 The Dictionary of Occupational Titles assigns a specific vocational preparation 5 level of 7 to a painter. DOT 840.381-010. This means that it takes over two years and up 6 to four years to learn the job. Id. In addition, in order to constitute substantial gainful 7 employment, Burky must have earned at least $800 per month in 2003, $810 per month 8 in 2004, and $830 per month in 2005. See Substantial Gainful Activity, Social Security 9 Administration, available at https://www.ssa.gov/oact/cola/sga.html, last visited July 19, 10 2016. 11 The Court finds that Burky’s work as a painter qualifies as past relevant work. 12 From 2003 to 2005, Burky’s earnings far exceeded the monthly threshold, and thus the 13 work qualifies as substantial gainful activity. Furthermore, Burky performed this work 14 for three years as substantial gainful activity, which falls squarely within the time period 15 deemed necessary to learn the job. 16 substantial gainful level for four years in order for his work as a painter to qualify as past 17 relevant work. (Doc. 21 at 6.) But Burky cites no authority that a claimant must perform 18 the job for the full recommended duration in order to learn it. In any event, Burky 19 continued to work intermittently as a painter for during the next three years, which 20 suggests he fully learned the job and could have performed such work at a substantial 21 gainful level. Accordingly, the Court finds the ALJ did not err in concluding that Burky 22 could perform his past relevant work as a painter.4 Burky argues that he must have worked at a 23 C. The ALJ Did Not Err In Evaluating Burky’s Credibility 24 Burky argues the ALJ erred in evaluating the credibility of his testimony regarding 25 26 27 28 4 This finding renders the ALJ’s decision that Burky could perform past relevant work as a stone polisher harmless. See Maydanis v. Colvin, 119 F. Supp. 3d 969, 973 (D. Ariz. 2015) (“An error is harmless if there remains substantial evidence supporting the ALJ’s decision and the error does not affect the ultimate nondisability determination.”). Here, because Burky can perform past relevant work as a painter, the ALJ’s nondisability determination is still supported by substantial evidence. -8- 1 the severity of his symptoms. (Doc. 16 at 18.) In evaluating credibility, the ALJ is 2 required to engage in a two-step analysis: (1) determine whether the claimant presented 3 objective medical evidence of an impairment that could reasonably be expected to 4 produce some degree of the pain or other symptoms alleged; and, if so with no evidence 5 of malingering, (2) reject the claimant’s testimony about the severity of the symptoms 6 only by giving specific, clear, and convincing reasons for the rejection. Vasquez v. 7 Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “In reaching a credibility determination, an 8 ALJ may weigh inconsistencies between the claimant’s testimony and his or her conduct, 9 daily activities, and work record, among other factors.” Bray v. Comm’r of Soc. Sec. 10 Admin., 554 F.3d 1219, 1227 (9th Cir. 2009). 11 At the hearing, Burky testified that he was let go from his last job because of 12 depression and mood swings. (A.R. 36.) He stated that he has lived alone in an 13 apartment for eight years and that his father takes care of his bills and supports him. (Id. 14 at 39-40.) Burky is able to take care of his hygiene, cook meals, and has a cat. (Id. at 15 43.) During the day, he drinks his coffee, plays with his cat, calls his father, and watches 16 TV. (Id. at 43.) His hobbies include watching baseball and playing guitar, which he 17 plays twice a week. (Id. at 43-44.) He does not have any friends or a significant other, 18 does not attend church, does not have a computer, and does not go out. (Id. at 44-45.) 19 He does his own laundry, dishes, and other household cleaning. (Id. at 45.) He testified 20 that he quit smoking and using alcohol three years ago. (Id. at 45-46.)5 21 When asked why he was unable to work, Burky stated: “I get racing thoughts. 22 My depression, sometimes I – if it’s not an angry mood swing, I’ll just start breaking out 23 into tears for no reason at all. It’s really kind of hard to function when this goes on.” (Id. 24 at 47.) He stated that this occurs a couple times a week and that he is taking medication, 25 which helps him most of the time. 26 prevented him from “[f]ollowing instructions, talking with bosses, having difference of (Id.) Burky further stated that his condition 27 5 28 This testimony appears to be untruthful. In January 2014, five months before he testified at the hearing, Burky reported to Dr. Parsons that he was continuing to smoke ten cigarettes per day. (A.R. 479.) -9- 1 opinions the way things should be done and shouldn’t be done.” (Id.) Burky testified 2 that he feared leaving his house and has hallucinations. (Id. at 48.) When he is on 3 medication, he only experiences one mood swing each week. (Id. at 49.) He stated that 4 he has dyslexia, which makes him easily distracted. (Id.) 5 The ALJ found Burky’s statements regarding the intensity, persistence and limited 6 effects of his symptoms not fully credible because they were inconsistent with his 7 activities of daily living and inconsistent with objective medical evidence in the record. 8 (Id. at 20-21.) “[W]hether the claimant engaged in daily activities inconsistent with the 9 alleged symptoms” is relevant to a claimant’s credibility. Molina v. Astrue, 674 F.3d 10 1104, 1112 (9th Cir. 2012) (internal quotation marks omitted). Here, the ALJ noted that 11 Burky “manage[d] well on his own” considering he handled his personal care, did 12 laundry, household chores, cared for his cat, and prepared his own meals. (A.R. 20-21.) 13 In addition, he noted that Burky is capable of handling his own finances, including 14 paying bills, counting change, and using a savings account and checkbook, which 15 undermines his claims that he cannot concentrate or carry out simple instructions. (Id. at 16 232.) But these activities are done in isolation, without any work pressure, and involve 17 little concentration. Consequently, the Court finds that these reasons, standing alone, are 18 insufficient to discount Burky’s credibility.6 19 This error is harmless, however, because the ALJ provided another sufficient 20 reason. An ALJ may discount a claimant’s credibility if the “statements at [his] hearing 21 do not comport with objective evidence in [his] medical record.” Bray, 554 F.3d at 1227. 22 In making this finding, the ALJ cited Dr. Parsons’ treatment notes, discussed in length 23 above, which document Burky’s improvement and demonstrate that he was doing well in 24 treatment. (A.R. 21.) The ALJ also noted that, in Dr. Parsons’ opinion, Burky was 25 6 26 27 28 The ALJ correctly concluded that one of Burky’s statements regarding his daily activities is inconsistent with his severe anxiety. For example, in a self-assessment form completed in October 2012, Burky stated that he only goes outside of his house once or twice a month for appointments and grocery shopping because he lost his driver’s license due to DUI, (Id.), not because of anxiety, as was his testimony, (Id. at 47). This is at least partially inconsistent with his claim that his impairments are so debilitating that he cannot work. This reason is sufficient to partially discount Burky’s testimony. - 10 - 1 consistently making progress in treatment and showing improvement. (Id.) Indeed, on 2 several occasions during the latter stages of his treatment, Burky stated that he was doing 3 well and that his medication was helping. In addition, the ALJ cited Dr. Tromp’s report, 4 which found that Burky’s symptoms were less frequent after he began taking medication 5 and that Burky exhibited stable mood, adequate memory, attention, concentration, and 6 acted socially appropriate during his exams. (Id. at 314-15.) This evidence suggests 7 Burky is able to interact with people one-on-one or in small group settings. It also 8 undermines his testimony that his mood swings cause him to be unable to interact at all 9 with coworkers or supervisors. The ALJ’s interpretation of the medical evidence is 10 reasonable, and this reason is sufficient.7 11 Accordingly, the Court finds the ALJ provided specific, clear, and convincing 12 reasons for discounting Burky’s credibility regarding the severity of his symptoms, and 13 that those reasons are supported by substantial evidence. Vasquez, 572 F.3d at 591. 14 15 16 IT IS ORDERED that the final decision of the Commissioner of Social Security is AFFIRMED. The Clerk shall enter judgment accordingly and terminate this case. Dated this 27th day of July, 2016. 17 18 19 20 Douglas L. Rayes United States District Judge 21 22 23 24 25 26 7 27 28 Notably, the ALJ did not completely discredit Burky’s testimony. The RFC precludes Burky from interacting with the general public, but permits occasional contact with coworkers and supervisors. (A.R. 20.) This finding is consistent with Burky’s testimony that he gets anxious in large crowds as well as his behavior exhibited during his medical examinations. (Id. at 44). - 11 -

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