Raegen v. Commissioner Social Security Administration
Filing
20
Opinion and Order - The Commissioner's final decision is AFFIRMED.. Signed on 1/13/2014 by Judge Robert E. Jones. (See Opinion and Order, 8-pages) (ecp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Portland Division
MARYROSE RAEGEN 0/B/0 THERESA
SYZONENKO (DECEASED),
)
)
)
)
Plaintiff,
)
v.
)
)
CAROLYN W. COLVIN, Acting Commissioner of)
Social Security,
)
3: 13-CV-00090-JO
OPINION AND ORDER
)
Defendant.
JONES, J.,
Plaintiff MaryRose Raegen, brought this appeal on behalf of her deceased sister, Theresa
Syzonenko. The Commissioner denied in patt Syzonenko' s application for disability insurance
benefits under Title II of the Social Security Act. The court has jurisdiction under 42 U.S.C.
§ 405(g). I AFFIRM the Commissioner's decision.
PRIOR PROCEEDINGS
Syzonenko alleged disability beginning December 1, 2004 due to bipolar disorder. Admin.
R. 11, 96, 118. The ALJ applied the sequential disability determination process described in 20
C.F.R. section 404.1520. See Bowen v. Yuckert, 482 U.S. 137, 140 (1987). He found that
Syzonenko' s ability to work was adversely affected by bipolar disorder, anxiety disorder, and
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diabetes. Admin. R. 13. He found that, despite her impainnents, Syzonenko retained the residual
functional capacity to perform light work limited to simple, routine, repetitive tasks. Admin. R. 14.
The ALJ relied on testimony from a vocational expert ("VE") who said that numerous jobs exist in
the national economy that a person with Syzonenko's RFC could perfmm. Admin. R. 18, 65-66.
The ALJ concluded that Syzonenko was not disabled within the meaning of the Social Security Act.
Admin. R. 18-19.
Syzonenko appealed that decision to the district comi, but died from cancer umelated to her
allegations of disability while the appeal was pending. Admin. R. 498. In that appeal, Judge Brown
reversed and remanded the decision for further administrative proceedings in which the ALJ was to
reevaluate cetiain evidence, including the lay witness statement ofRick Edmunds, a manager of the
Safeway grocery store where Syzonenko worked as a courtesy clerk. Admin. R. 580, 582, 585.
On remand, the ALJ received additional evidence, conducted a second administrative
hearing, and issued a new decision. The ALJ found that Syzonenko' s ability to work was adversely
affected by bipolar disorder, anxiety disorder, diabetes, and, beginning in 2008, anemia. Admin. R.
501. The ALJ found no basis to alter his previous RFC determination with respect to the period
before November 1, 2008. He found that beginning on that date, Syzonenko's fatigue became so
profound as that she was unable to work more than four hours per day. Admin. R. 508. For the
period before November 2008, the ALJ relied on the VE's testimony from the first hearing and
concluded that Syzonenko was not disabled at that time. Admin. R. 509-10. He found that
Syzonenko became disabled on November 1, 2008, and remained disabled until her death. Admin.
R. 511.
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STANDARD OF REVIEW
The district court must affirm the Commissioner's decision if it is based on proper legal
standards and the findings offact are suppO!ied by substantial evidence in the record as a whole. 42
U.S. C.§ 405(g); Batson v. Comm 'r ofSoc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Under
this standard, the Commissioner's factual findings must be upheld if supp01ied by inferences
reasonably drawn from the record even if evidence exists to suppmi another rational interpretation.
Batson, 359 F.3d at 1193; Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995).
DISCUSSION
I.
Claims of Error
The relevant period for Raegen's appeal runs from the alleged onset of disability in
December 2004 until the onset of disability determined in the ALJ' s decision after remand,
November 1, 2008. Raegen contends that, with respect to the relevant period, the ALJ failed to
assess Syzonenko's RFC accurately because he improperly discounted Raegen's statements and
those of Rick Edmunds regarding the nature of Syzonenko' s employment at the grocery store.
Raegen also contends the ALJ failed to address the lay witness statement ofBarbara Anctil regarding
Syzonenko' s functional limitations.
II.
Lay Witness Statements
Raegen contends the ALJ improperly rejected the lay witness statements without giving
adequate reasons. An ALJ must consider the testimony of a lay witness, but may discount it for
reasons ge1mane to the witness. Valentine v. Comm 'r ofSoc. Sec. Admin., 574 F.3d 685, 694 (9th
Cir. 2009). The ALJ' s reasons must be suppmied by substantial evidence, but may appear anywhere
in the decision and need not be tied directly to the evaluation of the lay witness statements. Lewis
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v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). If the ALJ gives adequate reasons for rejecting the
testimony of one witness, those reasons are sufficient to reject the similar statements of a different
lay witness, even if the ALJ does not discuss each witness's statements on an individualized basis.
Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012).
Rick Edmunds managed the grocery store where Syzonenko worked beginning in 2005. In
July 2008, Edmunds submitted a witness statement indicating that Syzonenko worked as a courtesy
clerk with duties limited to bagging groceries and collecting shopping carts from the parking lot.
He said she had been hired under a program that Safeway maintains for challenged individuals. He
believed Syzonenko had a mental condition that made her hear things in her head and left her unable
to translate thoughts into actions. He said she had a slow affect and no sense of urgency. Edmunds
said she required constant redirection to remain on task and missed work frequently resulting in great
fluctuations in her hours. Admin. R. 648.
The ALJ gave Edmunds's witness statement little weight. Admin. R. 507. The ALJ pointed
out that Syzonenko said she had no physical or mental difficulties with her work at Safeway, other
than a period during which she was off work for a diabetic ulcer on her foot. Admin. R. 33-34, 503.
The ALJ relied on mental health and primary care records which failed to reveal any treatment
provider who found Syzonenko was unable to work or suffered the symptoms Edmunds described.
Admin. R. 504, 507. While working at Safeway, Syzonenko did not mention to her mental health
therapist any difficulty with that job and reported patticipating in church groups and planning to
volunteer at care centers for the elderly and for children. Admin. R. 320, 322, 323, 325-26, 505, 506.
She did not require mental health therapy between August 2006 and May 2008. Admin. R. 505.
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The ALJ also relied on Syzonenko' s performance evaluations from several direct supervisors
at Safeway.
During the relevant period, Syzonenko received consistently positive reviews
describing her as a dependable employee who provided satisfact01y service. Earlier evaluations
mentioned a need for improvement in problem solving and product knowledge, but over time,
Syzonenko improved in these areas.
The performance evaluations do not support Edmunds's
assertions that Syzonenko required special supervision or had a problem with absenteeism or
umeliability. Admin. R. 506, 507, 702-10. The ALJ also found it significant that Syzonenko's
performance reviews were done by supervisors other than Edmunds, suggesting limitations in his
personal knowledge of her work performance. Admin. R. 507.
I find no error in the ALJ's
evaluation of Edmunds's lay witness statement.
Raegen next contends that the ALJ did not properly address her own statements about
Syzonenko' s work at Safeway. Raegen testified at the second hearing that Syzonenko had been hired
out of pity and kept the job only because her supervisors accepted poor performance for which
Syzonenko would have been fired anywhere else. Admin. R. 541. The ALJ discounted Raegen's
statements about Syzonenko' s work at Safeway in light of the treatment records and performance
evaluations described previously.
Admin. R. 507. It was reasonable for the ALJ to infer that
Syzonenko' s direct supervisors and treatment providers had better knowledge of the nature of the
work and of Syzonenko's perf01mance than Raegen. Accordingly, I find no enor in the ALJ's
evaluation of Raegen' s testimony.
Raegen also contends the ALJ failed to consider the lay witness statements of Syzonenko' s
other sister, Barbara Anctil. In November 2005, Anctil provided a written witness statement.
Admin. R. 134-41. In July 2008, she testified at Syzonenko's first administrative hearing. Admin.
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R. 53-62. In the first administrative decision, theALJ addressed Anctil's statements. He found them
of less value than other evidence because Anctil did not live with Syzonenko, suggesting limited
personal knowledge. The ALJ found that Syzonenko' s treatment records suggested she had greater
function than Anctil described. Admin. R. 15. Syzonenko did not challenge this finding in her
appeal to the district court and Judge Brown did not address it in her remand order. Admin. R. 56985. It is unclear to me that Raegen can properly raise this challenge at this juncture, having waived
it in the previous appeal.
At any rate, the ALJ addressed Anctil's statements again in the decision after remand, giving
the same reasons from the first decision. Admin. R. 506-07. Those reasons are supported by
substantial evidence and provide an adequate basis to discount Anctil's statements. Lewis v. Apfel,
236 F.3d at 512. In addition, the ALJ's reasons for discounting the lay witness statements of
Edmunds and Raegen are sufficient to reject the Anctil's similar statements regarding Synovenko' s
functional limitations. klolina, 674 F.3d at 1114. Accordingly, I find no en·or in the ALJ's
evaluation of Anctil's lay witness statements.
III.
Other Contentions
Raegen contends the ALJ failed to consider whether Syzonenko's work at Safeway was
"sheltered work." Pl.'s Br. 13. Raegen argues that past work performed under special conditions
accommodating a claimant's limitations cannot constitute substantial gainful activity. Pl.'s Br. 7-8.
The premise is conect, but entirely beside the point because the ALJ did not find that the Safeway
job constituted substantial gainful activity. Admin. R. 501, 509. The ALJ relied on the Safeway
job to show that Syzonenko had the ability to do light unskilled work involving simple repetitive
tasks such as bagging groceries, to work standing up, and to engage in appropriate interactions with
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customers, supervisors, and coworkers. Admin. R. 504-07. The ALJ was entitled to consider the
Safeway job in determining Syzonenko' s abilities, whether or not it was "sheltered work." 20 C.F .R.
§ 404.1573(c).
Moreover, the ALI's decision shows that he did consider whether the work at Safeway was
"sheltered work."
The nature of the job was adequately described by Syzonenko and the
performance evaluations of her direct supervisors. That evidence does not show special conditions,
continuous close supervision, or subsidized payment exceeding the value of the work Syzonenko
performed. The ALJ reasonably concluded that the work was not "sheltered work" within the
meaning of the regulations. 20 C.F.R. § 404.1573(b). Admin. R. 507.
Raegen contends the ALJ had an obligation to develop the record more fully regarding
Syzonenko's employment at Safeway. An ALJ must develop the record more fully when the
evidence is ambiguous or when the ALJ finds the record inadequate to allow for proper evaluation
of the evidence. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). Circumstances
requiring futiher development are not present here.
Finally, Raegen contends the ALJ improperly discounted Syzonenko's credibility based on
her employment at Safeway. Pl.'s Br. 12, 14. The ALJ discounted Syzonenko's credibility for
multiple reasons described in his first decision. On appeal, Judge Brown affirmed the credibility
finding. Admin. R. 577-79. None of the new evidence received after remand provides any basis for
revisiting Judge Brown's ruling, and Raegen's argument for doing so is unpersuasive.
Ill
Ill
Ill
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CONCLUSION
For the foregoing reasons, the Commissioner's final decision is AFFIRMED.
DATED this
l '3~ day ofJanuary, 2014.
nes, Senior Judge
ates District Court
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