Burlingham v. Commissioner Social Security Administration, No. 3:2013cv01030 - Document 12 (D. Or. 2014)
Court Description: OPINION AND ORDER. For the foregoing reasons, the decision of the ALJ is AFFIRMED. IT IS SO ORDERED. Signed on 05/28/2014 by Judge Malcolm F. Marsh. (pvh)
Download PDF
<![CDATA[
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON BECKY BURLINGHAM, Plaintiff, v. COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant. MERRILL SCHNEIDER Schneider Kerr & Gibney Law Offices P.O. Box 14490 Portland, Oregon 97293 Attorneys for Plaintiff S. AMANDA MARSHALL United States Attorney ADRIAN L. BROWN Assistant United States Attorney 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97204-2902 COURTNEY M. GARCIA Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, Washington 98104 Attorneys for Defendant 1 - OPINION AND ORDER 3:13-cv-01030-MA OPINION AND ORDER MARSH, Judge Plaintiff, Becky Burlingham, brings this action for judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying her application for disability insurance benefits (DIB) under Title II of th{ Social Security Act (the Act). See 42 U.S.C. 42 U.S.C. §§ 401-434. 405(g). § This court has jurisdiction pursuant to For the reasons set forth below, I affirm the final decision of the Commi-ssioner. PROCEDURAL BACKGROUND Plaintiff protectively filed an application for DIB on September 9, 2009, alleging disability beginning August 1, 2004, caused by generalized anxiety disorder, disorders of both feet, high blood pressure, "neck and shoulder from car accident 1212008," a bulging disc in her back, and a leg contusion. Plaintiff's date last insured is June 30, 2005. Tr. 154. The Commissioner denied Plaintiff's claim initially and upon reconsideration. An Administrative Law Judge (ALJ) held a hearing on May 19, 2011, at which Plaintiff testified and was represented by counsel. Tr. 36- 56. present In addition, vocational expert throughout the hearing and testified. Nancy Bloom was Tr. 53-56. On June 3, 2011, the ALJ issued a decision denying Plaintiff's application. Tr. 19-28. The Appeals Council declined review and Plaintiff timely appealed to this court. Ill 2 - OPINION AND ORDER Tr. 1-3. FACTUAL BACKGROUND Born on March 22, 1958, Plaintiff was 51 years old on the application date and 53 years old on the date of the hearing. 150. Plaintiff has a high school diploma, degree in marketing, and ·has her Tr. earned an associate real tor license. Tr. 159. Plaintiff has past relevant work as an Administrative Assistant, Retail Clerk, and Real Estate Agent. Tr. 26-27. In addition to her hearing testimony, Plaintiff submitted an Adult Function Report. Tr. 161-68. Plaintiff's mother, Virginia I. Third Function Report. Sikes, submitted a Party Tr. 178. Although the record does not contain the opinion of any treating or examining physician, it does contain a disability determination from the Department of Veteran Affairs (VA). Tr. 519-21. THE ALJ'S DISABILITY ANALYSIS The Commissioner has established a five-step sequential process for determining whether a person is disabled. Yuckert, 482 U.S. 137, 404.1520(a) (4) (i)-(v), Cir. 1999). show that (1987); 416. 920 (a) (4) (i)- (v). potentially dispositive. Steps One through Four. 140-42 20 Bowen v. C.F.R. Each step §§ is The claimant bears the burden of proof at Tackett v. Apfel, 180 F.3d 1094, 1098 (9th The burden shifts to the Commissioner at Step Five to a significant number of jobs economy that the claimant can perform. 141-42; Tackett, 180 F.3d at 1098. 3 - OPINION AND ORDER exist in See Yuckert, the national 482 U.S. at At Step One, the ALJ determined that Plaintiff did not engage in substantial gainful activity during the period between her alleged onset date of August 1, 2004, and her date last insured on June 30, 2005. At Step See 20 C.F.R. Two, the ALJ §§ 404.1571 et seq.; Tr. 21. found that Plaintiff's pes planus, neuromas in the feet post surgery, hammertoes post surgery, urinary incontinence resulting from bladder prolapse repaired in 2005, and anxiety were severe impairments. See 20 C.F.R. §§ 404.1520(c); Tr. 21. At Step Three, the ALJ determined Plaintiff does not have an impairment or combination of impairments that meet or medically equal any listed See impairment. 20 C.F.R. §§ 404.1520(d), 404 .1525, 404 .1526; Tr. 21-22. The ALJ found Plaintiff has the residual functional capacity (RFC) to perform sedentary work, except that Plaintiff is further limited to occasional balancing, stopping, work with routine climbing kneeling, tasks; of ramps and frequent crouching, or crawling; unskilled and superficial general public and coworkers. stairs; interaction with the Tr. 22-26. At Step Four, the ALJ found Plaintiff is unable to perform any of her past relevant work. See 20 C.F.R. §§ 404.1565; Tr. 26-27. At Step Five, however, the ALJ found jobs exist in significant numbers in the national 4 - OPINION AND ORDER economy that Plaintiff can perform, including Semiconductor Wafer Breaker, Microfilm Document Preparer, and Addressor. See 20 C.F.R. §§ 404.1569, 404.1569a; Tr. 27-28. Accordingly, the ALJ found Plaintiff was not disabled within the meaning of the Act. ISSUES ON REVIEW Plaintiff raises two argues -the ALJ cited issues on insufficient disability determination. Second, review. reasons First, to Plaintiff discount the VA Plaintiff maintains the ALJ improperly rejected Ms. Sikes' testimony. STANDARD OF REVIEW The Court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings are supported by substantial evidence in the record. 405(g); Andrews v. 1039 Shalala, 53 F.3d 1035, 42 u.s.c. (9th Cir. § 1995). "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Court must weigh all of the evidence, whether detracts from the Commissioner's decision. 807 F.2d 771, 772 (9th Cir. 1986). to more than one rational decision must be upheld. supports The or Martinez v. Heckler, If the evidence is susceptible interpretation, Andrews, it Id. the Commissioner's 53 F. 3d at 1039-40. If the evidence supports the Commissioner's conclusion, the Commissioner must be affirmed; "the court may not substitute its judgment for 5 - OPINION AND ORDER that of the Edlund v. Massanari, Commissioner~" 253 F. 3d 1152, 1156 (9th Cir. 2001). DISCUSSION I. VA Disability Determination "[A)n ALJ must ordinarily give great weight to a VA disability determination." Cir. 2002). McCartey v. Massanari, 298 F.3d 1072, 1076 (9th "Because the VA and [Social Security Administration) criteria for determining disability are not identical, however, the ALJ may give less weight to a VA disability rating if he gives persuasive, specific, valid reasons for doing so that are supported by the record." The VA beginning disability July conditions. Id. 28, Tr. determination 2004 520. exclusively The VA gave combined rating" of 60% disabled, 100% rate of disability. The reasons. ALJ rejected found on Plaintiff account Plaintiff disabled of an her foot "overall or which entitled Plaintiff to a Tr. 520. the VA' s disability findings for three First, the ALJ noted that the Commissioner's disability determinations do not follow the percentage-based disability system the VA employs. medical record Tr. 26. attached Second, to the the ALJ noted that the lone disability determination was ambiguous and appeared to rely on Plaintiff's allegation of when she became disabled rather than the physician's judgment. Tr. 26. Finally, the ALJ rejected the VA' s disability determination because 6 - OPINION AND ORDER Plaintiff's "extensive inconsistent with conditions. Tr. a activities disability 26. I of finding conclude living" were on daily foot based the ALJ' s third her reason is a "persuasive, specific, and valid" reason, "supported by the record" to reject the VA's disability determination. See McCartey, 295 F.3d at 1076. At the outset, I note the ALJ's first two reasons for discounting the VA disability determination are insufficient. The citation of differences between the Commissioner's and the VA's rules governing disability determinations is not by itself a valid reason to disco.unt the VA' s disability determination. Astrue, 622 F.3d 1228, 1236 (9th Cir. 2010). Berry v. As to the ALJ' s second reason, while I agree that the medical record attached to the disability determination is ambiguous, its attachment to the disability determination is clearly mistaken, as the medical record is dated September 2, 2009; more than five years after the VA made its disability determination. T.r. 522. A mistakenly attached medical record does not undercut the substance of the VA disability determination as it related to the Commissioner's determination. The activities ALJ' s of citation daily to living for inconsistency discounting with the VA Plaintiff's disability determination, however, is a compelling reason to discount the VA disability determination. As noted above, the VA found Plaintiff completely disabled based on her bilateral foot conditions. 7 - OPINION AND ORDER Tr. 520. The record, however, contains several references to Plaintiff participating in activities that are manifestly inconsistent with being unable to perform any work available in significant numbers in the national economy on account of foot problems. On April 13, 2006, Plaintiff reported that a new boyfriend "takes her to the movies, to play golf, and to go dancing." 437. Similarly, on June 29, "learning to play golf." 2009, Tr. 268. Tr. Plaintiff reported she was Golfing and dancing are clearly inconsistent with allegedly disabling foot conditions. In May of 2004, Plaintiff took an eight-day road trip with her ex-boyfriend. Tr. 491. In June of 2008, Plaintiff took a 4300-mile cross-country road trip. time Tr. 340. necessary to Plaintiff's ability to sit for the periods of take such extended road trips suggests Plaintiff's foot conditions would not preclude her from sedentary work. On March 13, 2008, Plaintiff reported walking treadmill a couple of times in the last week." Tr. 355. "on the On May 20, 2009, Plaintiff reported that she "did some yard work over the weekend" without noting that she was limited by her feet. Tr. 282. Finally, on October 15, 2010, Plaintiff noted she had "been very active lately." 1 Tr. 1023. 1 Although many of these references occurred after Plaintiff's date last insured, there is no evidence in the record that Plaintiff's foot conditions improved or otherwise changed significantly between the date of the VA disability determination, the relevant period of disability for Social Security purposes, and the dates Plaintiff reported engaging in the above activities. Thus, Plaintiff's later participation in 8 - OPINION AND ORDER These activities, testimony and Adult along with those described in Plaintiff's Function Report, are inconsistent with a finding that Plaintiff could not perform any work available in significant numbers in the national economy because of her foot conditions. The ALJ's citation to Plaintiff's activities of daily living, then, was a persuasive, specific, and valid reason, readily supported by substantial evidence, determination sedentary work. 685, 694-95 in favor of an to discount _the VA disability RFC that limited Plaintiff to See Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d (9th Cir. 2009) (affirming an ALJ' s rejection of a VA disability determination despite the legal inadequacy of some of the ALJ's reasons), The ALJ properly considered the VA disability determination. II. Lay Testimony Plaintiff next asserts that the ALJ cited insufficient reasons to reject the testimony of Plaintiff's mother, testimony regarding a Ms. Sikes. Lay claimant's symptoms or how an impairment affects.her ability to work is competent evidence that an ALJ must take into account. 2012). Mo°lina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. To discount lay witness testimony, reasons that are germane to the witness. the ALJ must give Id. activities inconsistent with disabling foot conditions is strong circumstantial evidence that Plaintiff's foot conditions were not disabling within the relevant period. 9 - OPINION AND ORDER Ms. Sikes October 5, submitted 2009, a Third Party Function Report dated in which she reported she is not familiar with what Plaintiff does on a day-to-day basis aside from what Plaintiff tells her. Tr. Nonetheless, 178. Plaintiff "time Ms. Sikes reported it takes to get up and around." Tr. 178. Ms. Sikes noted that as a result of her conditions, Plaintiff is no longer able to walk, ride a bicycle, or work in the yard. Tr. 179. Ms. Sikes reported that Plaintiff can cook simple meals, although she can no longer cook large meals, laundry. Tr. 180. Ms. and can do light cleaning and Sikes noted that she does not know how often Plaintiff goes outside, but that Plaintiff does go shopping for groceries once per week. Ms. Sikes reported Tr. 181. that Plaintiff reads and watches television, but only if she can sit long enough, and cannot do much else. T'r, 182. As to Plaintiff's social activities, Ms. Sikes reported that Plaintiff socializes on the telephone and computer, but she did not know how often. Tr. 182. Ms. Sikes reported that Plaintiff has difficulty getting along with friends because she lacks patience. As to Plaintiff's and family Tr. 183. abilities, Ms. Sikes checked that Plaintiff's conditions affect her abilities to lift, squat, bend, stand, reach, concentrate, walk, sit, and get kneel, climb stairs, along with others. Tr. complete 183. Ms. tasks, Sikes reported that she did not know how long Plaintiff can walk or how 10 - OPINION AND ORDER much she can lift. Tr. 183. Ms. Sikes, however, noted that Plaintiff can only walk for one-half of a block before needing to rest for between five and ten minutes. Tr. 183. Finally, Sikes reported that Plaintiff handles stress poorly, Ms. and in the past Plaintiff has started to drive to visit Ms. Sikes only to turn around and return home. Tr. 184. The ALJ rejected Ms. Sikes' testimony because Ms. Sikes "lacks the expertise conditions," objectively and because to evaluate Ms. Sikes' the claimant's reports are medical based on Plaintiff's subjective complaints and statements regarding symptoms and limitations. I conclude the second of these reasons is a germane reason to reject Ms. Sikes' testimony. At the outset, I note that lack of medical expertise is not a germane reason to reject the lay witness's testimony. The witness's lack of medical expertise is, by definition, why it is considered lay witness testimony. " [ F] riends and family members in a position to observe a claimant's symptoms and daily activities are competent to testify as to her condition." Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993). The ALJ' s rejection of Ms. Sikes' testimony because it was based on Plaintiff's subjective reporting, however, reason. is a germane Indeed, Ms. Sikes reported several times throughout the course of the Function Report that she was not personally familiar with important aspects 11 - OPINION AND ORDER of Plaintiff's functionality, including Plaintiff's daily activities, the length of time Plaintiff can walk, or the amount Plaintiff can lift. Tr. 178, 183. In response to the question about how often Plaintiff goes outside, Ms. Sikes noted she did not Considering Ms. Plaintiff's know because Sikes' daily she is "not there." admissions activities of and lack some of Tr. 181. familiarity with important functional limitations, it was reasonable for the ALJ to conclude much of Ms. Sikes' opinion was based on Plaintiff's unreliable self-reporting. 2 Accordingly, the ALJ did not commit harmful error in his consideration of the lay testimony. CONCLUSION For the foregoing reasons, the decision of the ALJ is AFFIRMED. IT IS SO ORDERED. DATED this ::l,j' day of May, 2014. Malcolm.F. Marsh United States District Judge 2 Plaintiff does not challenge the ALJ's adverse finding as to Plaintiff's credibility. 12 - OPINION AND ORDER
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
