Rodney Burky v. NANCY A. BERRYHILL, Acting Commissioner Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RODNEY BURKY,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
No. 16-16667
D.C. No. 3:15-cv-08190-DLR
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Argued and Submitted October 17, 2017
San Francisco, California
Before: WALLACE, CALLAHAN, and NGUYEN, Circuit Judges.
Rodney Burky (“Burky”) timely appeals the district court’s decision
affirming the administrative law judge’s (“ALJ”) denial of his application for
disability insurance benefits and supplemental security income under Titles II and
XVI of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291.
Burky contends that the ALJ’s decision is unsupported by substantial
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
JAN 9 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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evidence in three respects: the ALJ (1) wrongly discounted the medical opinion of
Dr. Lisa Parsons, the psychiatrist who treated Burky for about two years; (2) erred
in finding that Burky’s work as a painter and stone polisher qualified as past
relevant work; and (3) improperly discounted Burky’s credibility regarding the
severity of his symptoms. Reviewing the district court’s decision de novo and the
ALJ’s determination for substantial evidence, Garrison v. Colvin, 759 F.3d 995,
1009—10 (9th Cir. 2014), we affirm.1
1. The ALJ Did Not Err in Discounting Dr. Parsons’ Medical Opinion
An examining physician’s opinion generally is given greater weight than
that of a non-examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir.
1995). But the task of weighing the medical testimony and resolving conflicts
among them belongs to the ALJ. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995). So long as the ALJ’s decision is rationally supported by the evidence, when
examined as a whole, we must uphold the ALJ’s determination. Thomas v.
Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).
The ALJ provided specific and legitimate reasons supported by substantial
evidence for discounting Dr. Parsons’ opinion. First, the ALJ noted that Dr.
Parsons’ opinion was inconsistent with the medical evidence in the record and
failed to account for Burky’s recent improvement. Batson v. Comm’r of Social
1 As the parties are familiar with the facts and procedural history, we restate
them only as necessary to explain our decision.

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Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). Second, the ALJ commented
that Dr. Parsons’ assessment was inconsistent with her own treatment notes. Dr.
Parsons’ diminished credibility on the cognitive functioning issue spills over into
social functioning because her assessment itself has been called into question;
taken in this light, the cognitive-social functioning distinction is illusory. Third,
the ALJ observed that Dr. Tromp’s statements about Burky’s social anxiety were
tempered by her observation that medication helped Burky cope with his anxiety.
The irritability, panic attacks, and agoraphobia from which Burky says he kept
suffering were symptoms of conditions that the medication may well have
mitigated (and at least for his panic attacks did mitigate). The ALJ further noted
that the improvements in Burky’s condition and Dr. Tromp’s observations
reinforced that conflict. Since the ALJ set forth specific and legitimate reasons for
its determination, we will leave it intact.
2. Burky Could Perform Past Relevant Work
At step four of the sequential evaluation process, the ALJ held that Burky
had the residual functional capacity (“RFC”) to perform his past relevant work:
painting. See 20 C.F.R. § 404.1560(b)(1).
The ALJ’s determination is based on that: (1) Burky worked as a painter
from 2003 through 2005; (2) throughout the 2003-05 period, Burky earned

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between $1,178.44 and $1,753.98 per month;2 and (3) Burky had enough time to
learn to be a painter. See Dictionary of Occupational Titles 840.381-010.
Consequently, the ALJ reasonably concluded that Burky had the RFC to be a
painter.
3. The ALJ Did Not Err in Finding Burky Not Credible.
When making a credibility determination, the ALJ must engage in a two-
step analysis: (1) determine whether the claimant presented objective medical
evidence of an impairment that could reasonably be expected to produce some
degree of the pain or other symptoms alleged, and, if so, with no evidence of
malingering; and (2) reject the claimant’s testimony about the severity of the
symptoms only by giving specific, clear, and convincing reasons for the rejection.
Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “[A]n ALJ may weigh
inconsistencies between the claimant’s testimony and his or her conduct, daily
activities, and work record, among other factors.” Bray v. Comm’r of Soc. Sec.
Admin., 554 F.3d 1219, 1227 (9th Cir. 2009).
The ALJ found Burky’s narration of his disability less than credible because
it conflicted with the profile that emerged from objective medical evidence and
Burky’s own assertions of his life activities. Burky testified that he suffers from
2 In order for painting as a vocation to constitute substantial gainful
employment, the painter must have earned at least $800 per month in 2003, $810
per month in 2004, and $830 per month in 2005.

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depression, angry mood swings, and “racing thoughts,” and that he sheds “tears for
no reason at all.” Yet Burky’s medical record, particularly Dr. Parsons’ treatment
notes, shows that he consistently is making progress in treatment, sometimes with
his medication’s help, and that he is visibly improving. The ALJ cited Dr.
Tromp’s report, which found that Burky’s symptoms became less frequent after he
began taking medication and that Burky exhibited stable mood, adequate memory,
attention, concentration, and frequently acted socially appropriate.
Based on all the medical evidence, the ALJ reasonably found that Burky is
able to interact with people one-on-one or in small group settings. This undercuts
Burky’s testimony that his mood swings cause him to be unable to interact at all
with co-workers or supervisors. As the ALJ’s determination was based on
objective medical evidence, it constitutes sufficient basis for us to uphold the
ALJ’s denial.
AFFIRMED.

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Burky v. Berryhill, 16-16667
NGUYEN, Circuit Judge, dissenting:
I respectfully dissent. The ALJ failed to provide specific and legitimate
reasons supported by substantial evidence for discounting Dr. Parsons’ opinion. In
concluding otherwise, the majority makes the same mistake as the ALJ, conflating
Burky’s cognitive abilities with his limited social functioning.
The ALJ rejected Dr. Parson’s opinion on the grounds that it was
inconsistent with the medical evidence and her own treatment notes. The record,
however, is replete with Dr. Parsons’ lengthy observations and assessments as to
Burky’s limited social (as opposed to cognitive) functioning, which the ALJ failed
to address despite the fact that these findings were corroborated by Dr. Tromp and
Burky’s testimony.1 For example, Dr. Parsons noted the following: in June 2012,
Burky would suffer panic attacks if he tried to leave his house; in August and
October 2012, Burky continued to suffer panic attacks and associated with no
friends or organizations; in January, 2013, Burky had not left home for weeks and
suffered from continued irritability, panic attacks and agoraphobia. While an ALJ
“need not discuss all evidence presented,” he must “explain why significant
1 The majority, like the ALJ, rely on Dr. Tromp’s statement that medication
helped Burky’s mood symptoms, but ignore Dr. Tromp’s ultimate conclusion that
“[Burky] would likely have significant anxiety in social settings in general,
particularly those with large groups of people.”
FILED
JAN 9 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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probative evidence has been rejected.” Vincent on Behalf of Vincent v. Heckler,
739 F.2d 1393, 1394–95 (9th Cir. 1984) (internal quotation marks omitted); see
also Trevizo v. Berryhill, 871 F.3d 664, 676 (9th Cir. 2017) (holding that an ALJ’s
failure to apply the appropriate factors enumerated in section 404.1527(c) in
rejecting the treating physician’s opinion “alone constitutes reversible legal
error.”). Because the ALJ failed to do so here, I would reverse and remand.

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