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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Rodney Burky, 

Plaintiff, 

v. 

Commissioner of Social Security 

Administration, 

Defendant. 

No. CV-15-08190-PCT-DLR

ORDER 

 Plaintiff Rodney Burky seeks review under 42 U.S.C. § 405(g) of the final 

decision of the Commissioner of Social Security (Commissioner) denying his application 

for supplemental security income and disability insurance benefits. Because the decision 

of the Administrative Law Judge (ALJ) is supported by substantial evidence and is not 

based on legal error, the Commissioner’s decision is affirmed. 

I. Background 

 A. Factual Background

 Burky is 49 years old and has a ninth grade education. (A.R. 33.) He previously 

worked as donation taker, groundskeeper, car washer, stone polisher, and painter. Burky 

has been diagnosed as bipolar and schizophrenic. He last worked in 2011. (Id. at 221.) 

B. Procedural History 

 On August 29, 2012, Burky applied for disability insurance benefits and 

supplemental security income, alleging disability beginning June 25, 2012. (Id. at 15.) 

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On June 17, 2014, he appeared with his attorney and testified at a hearing before the ALJ. 

A vocational expert also testified. 

 On October 14, 2014, the ALJ issued a decision that Burky was not disabled 

within the meaning of the Social Security Act. The Appeals Counsel denied Burky’s 

request for review of the hearing decision, making the ALJ’s decision the 

Commissioner’s final decision. On September 28, 2015, Burky sought review by this 

Court. 

II. Legal Standard 

 The district court reviews only those issues raised by the party challenging the 

ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court 

may set aside the Commissioner’s disability determination only if the determination is 

not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 

625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a 

preponderance, and relevant evidence that a reasonable person might accept as adequate 

to support a conclusion considering the record as a whole. Id. In determining whether 

substantial evidence supports a decision, the court must consider the record as a whole 

and may not affirm simply by isolating a “specific quantum of supporting evidence.” Id. 

As a general rule, “[w]here the evidence is susceptible to more than one rational 

interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be 

upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted). 

III. Five-Step Sequential Evaluation Process 

To determine whether a claimant is disabled for purposes of the Social Security 

Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears 

the burden of proof on the first four steps, but at step five, the burden shifts to the 

Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 

 At the first step, the ALJ determines whether the claimant is engaging in 

substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not 

disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant 

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has a “severe” medically determinable physical or mental impairment. 

§ 404.1520(a)(4)(ii). If not, the claimant is not disabled and the inquiry ends. Id. At step 

three, the ALJ considers whether the claimant’s impairment or combination of 

impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 

of 20 C.F.R. Pt. 404. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to 

be disabled. Id. If not, the ALJ proceeds to step four. At step four, the ALJ assesses the 

claimant’s residual functional capacity (“RFC”) and determines whether the claimant is 

still capable of performing past relevant work. § 404.1520(a)(4)(iv). If so, the claimant 

is not disabled and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final 

step, where he determines whether the claimant can perform any other work based on the 

claimant’s RFC, age, education, and work experience. § 404.1520(a)(4)(v). If so, the 

claimant is not disabled. Id. If not, the claimant is disabled. Id.

At step one, the ALJ found that Burky meets the insured status requirements of the 

Social Security Act through December 31, 2013, and that he has not engaged in 

substantial gainful activity since June 25, 2012. (A.R. 17.) At step two, the ALJ found 

that Burky has the following severe impairments: bipolar disorder, schizophrenia, panic 

disorder with agoraphobia, and antisocial personality disorder. (Id.) At step three, the 

ALJ determined that Burky does not have an impairment or combination of impairments 

that meets or medically equals an impairment listed in Appendix 1 to Subpart P of 20 

C.F.R. Pt. 404. (Id. at 18.) 

 At step four, the ALJ found that Burky has the RFC to perform “a full range of 

work at all exertional levels but with the following nonexertional limitations: he is 

limited to work requiring only occasional interaction with co-workers and supervisors, 

and no direct contact with the public.” (Id. at 20.) Accordingly, given his RFC, the ALJ 

concluded that Burky is capable of performing his past relevant work as a painter and 

stone polisher. (Id. at 23.) 

IV. Analysis 

 Burky argues the ALJ’s decision is unsupported by substantial evidence because 

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the ALJ (1) improperly discounted the medical opinion of Dr. Lisa Parsons, (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. (Doc. 16 at 4-5.) The Court will address each in turn. 

A. The ALJ Did Not Err in Evaluating the Medical Source Evidence 

 The ALJ is responsible for resolving conflicts in medical testimony. Andrews v. 

Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Generally, more weight should be given to 

the opinion of a treating physician than to the opinions of non-treating physicians. Lester 

v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Where a treating physician’s opinion is not 

contradicted by another physician, it may be rejected only for “clear and convincing” 

reasons, and where it is contradicted, it may not be rejected without “specific and 

legitimate reasons” supported by substantial evidence in the record. Id. Likewise, an 

examining physician’s opinion generally must be given greater weight than that of a nonexamining physician. Id. at 830. As with a treating physician, there must be clear and 

convincing reasons for rejecting the uncontradicted opinion of an examining physician, 

and specific and legitimate reasons, supported by substantial evidence in the record, for 

rejecting an examining physician’s contradicted opinion. Id. at 830-31. 

 Dr. Parsons, a psychiatrist, treated Burky for approximately two years. (A.R. 21.) 

In support of Burky’s claim, Dr. Parsons completed a “Mental Ability to Do WorkRelated Activities Form.” (Id. at 323-24.) Therein, she concluded that Burky had a poor 

ability to follow work rules; relate to co-workers; deal with the public; interact with 

supervisors; deal with work stresses; function independently; maintain attention and 

concentration; understand, remember and carry out detailed, but not complex, job 

instructions; and understand, remember and carry out simple job instructions. (Id.) Dr. 

Parsons cited “severe anxiety with panic attacks that lead to agoraphobia” and “extreme 

anxiety” as the findings that supported her assessment. (Id.) In addition, the assessment 

covered the period from June 25, 2016, the date in which Burky first saw Dr. Parsons, 

through January 31, 2013. (Id. at 324.) 

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 Dr. Parsons’ opinion was contradicted by the opinion of Dr. Shannon Tromp, who 

assessed less severe mental limitations. (Id. at 311-16.) Unlike Dr. Parsons, Dr. Tromp 

found that Burky had no impairment in his ability to understand and remember simple 

instructions, detailed instructions, and work-like procedures or responding appropriately 

to changes in the workplace. (Id.) Therefore, the ALJ was required to provide specific 

and legitimate reasons supported by substantial evidence for discounting Dr. Parsons’ 

opinions. See Lester, 81 F.3d at 830.1

 The ALJ did not give significant weight to Dr. Parsons’ opinion because it was 

inconsistent with the medical evidence in the record and failed to account for Burky’s 

recent improvement. (A.R. 22.) Inconsistency with the medical record is a sufficient 

basis for discounting medical source evidence. Batson v. Comm’r of Social Sec. Admin., 

359 F.3d 1190, 1195 (9th Cir. 2004). The ALJ concluded that the assessment conflicted 

with Dr. Parsons’ treatment notes. Specifically, Dr. Parsons noted that Burky has 

extreme anxiety, which would made concentration difficult. But prior to the assessment, 

she “consistently noted a lack of cognitive defects on the mental status examinations.” 

(A.R. 22.) Indeed, in June, August, and October of 2012, Dr. Parsons noted Burky had 

“immediate recall,” “intelligence equals fund of knowledge,” logical thought process, and 

no problems with recent or remote memory. (Id. at 300, 305, 394.) Yet in the 

assessment, she concluded that Burky had poor ability to remember, understand, and 

carry out simple and complex work instructions. (Id. at 324.) Moreover, the same day 

she completed the assessment, her treatment notes indicate no problems with cognition. 

(Id. at 389.)2

 In addition, Dr. Parsons found that Burky had poor ability to relate to coworkers 

 

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

 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.) 

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and interact with supervisors. (Id. at 323.) But her treatment notes consistently indicate 

that Burky was “at ease,” “calm,” “relaxed,” and “cooperative” during the examinations. 

(Id. at 300, 305, 394, 389.) She also noted that Burky was “engaging,” “interested,” had 

appropriate eye contact, laughed appropriately, and had “relaxed posture.” (Id. at 300, 

305, 394.) These observations are inconsistent with someone who is incapable of 

working because they cannot interact with coworkers or supervisors. 

 The ALJ also concluded that the assessment was inconsistent with Burky’s 

apparent improvement, which is evidenced by Dr. Parsons’ treatment notes. (Id. at 22.) 

In May 2013, after the assessment was completed, Burky reported that he was “doing 

good actually,” his mood was “alright,” and that he was “handling things ok.” (Id. at 

385.) In August 2013, Burky appears to have taken a step back, noting that he is upset 

from being denied social security. (Id. at 456.) Nonetheless, Dr. Parsons noted that he 

was “mak[ing] progress towards treatment goals.” (Id. at 457.) In January 2014, Burky 

claimed he was enjoying life, that his anxiety was “not too bad,” and that he was doing “a 

little better than normal.” (Id. at 479.) The treatment notes are inconsistent with Dr. 

Parsons’ 2013 assessment and evidence at least some improvement in Burky’s condition. 

 Burky argues that Dr. Parsons’ opinion is consistent with the record, and therefore 

should have been afforded great weight. (Doc. 16 at 13.) But Burky merely offers his 

own interpretation of the evidence. This is the ALJ’s responsibility, see Andrews, 53 

F.3d at 1039 (noting that it is the ALJ’s duty to interpret and resolve inconsistencies in 

the medical evidence), and the Court will not disturb the ALJ’s findings where his 

interpretation of the evidence is reasonable given the evidence in the record. See Batson 

v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004) (noting that “the 

Commissioner’s findings are upheld if supported by inferences reasonably drawn from 

the record, and if evidence exists to support more than one rational interpretation, we 

must defer to the Commissioner’s decision”). Accordingly, the Court finds the ALJ set 

forth specific and legitimate reasons supported by substantial evidence for discounting 

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Dr. Parsons’ opinion. See Lester, 81 F.3d at 830.3 

B. The ALJ Did Not Err In Finding Burky Could Perform Past Work 

 At step four, the ALJ found that, given his RFC, Burky could perform his past 

relevant work. (A.R. 23.) Burky argues the ALJ erred by finding that his previous work 

as a stone polisher and painter constituted past relevant work because he did not earn 

enough for a sufficient duration. (Doc. 16 at 14.) The Commissioner appears to concede 

that Burky’s past work as a stone polisher does not qualify as past relevant work. (Doc. 

20 at 7-8.) It argues, however, that this error is harmless because Burky’s past work as a 

painter qualifies as past relevant work. 

 Past relevant work is defined as “work that you have done within the past 15 

years, that was substantial gainful activity, and that lasted long enough for you to learn to 

do it.” 20 C.F.R. § 404.1560(b)(1). “The [SSA] grants to the Secretary the authority to 

determine when labor performed or earnings derived from labor constitute the ability to 

engage in substantial gainful activity.” Byington v. Chater, 76 F.3d 246, 248 (9th Cir. 

1996) (citing 42 U.S.C. § 423(d)(4)). “[E]arnings are a factor in a determination of 

whether [a claimant’s] work amounted to substantial gainful activity, but as the 

regulations make clear, are not determinative.” Id. at 250 (citing 20 C.F.R. § 

404.1575(a)). If monthly earnings fall below a certain threshold, a rebuttable 

presumption exists that the activity did not constitute substantial gainful employment. 

Baxla v. Colvin, 45 F. Supp. 3d 1116, 1136 (D. Ariz. 2014). 

 Burky worked as a painter throughout 2003, earning $14,141.25, or $1,178.44 per 

month. Throughout 2004, he worked at two different painting companies and earned a 

total of $17,979.50, or $1,498.29 per month. Throughout 2005, Burky earned 

$21,047.75, or $1,753.98 per month. Burky also appears to have worked as a painter 

from 2006 through 2008, however, he earned far less during those years, and thus it is 

 

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. 

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likely this work does not qualify as substantial gainful activity. (A.R. 198-99.) As such, 

the Court will analyze only whether Burky’s work as a painter from 2003 to 2005 

qualifies as past relevant work. 

 The Dictionary of Occupational Titles assigns a specific vocational preparation 

level of 7 to a painter. DOT 840.381-010. This means that it takes over two years and up 

to four years to learn the job. Id. In addition, in order to constitute substantial gainful 

employment, Burky must have earned at least $800 per month in 2003, $810 per month 

in 2004, and $830 per month in 2005. See Substantial Gainful Activity, Social Security 

Administration, available at https://www.ssa.gov/oact/cola/sga.html, last visited July 19, 

2016. 

 The Court finds that Burky’s work as a painter qualifies as past relevant work. 

From 2003 to 2005, Burky’s earnings far exceeded the monthly threshold, and thus the 

work qualifies as substantial gainful activity. Furthermore, Burky performed this work 

for three years as substantial gainful activity, which falls squarely within the time period 

deemed necessary to learn the job. Burky argues that he must have worked at a 

substantial gainful level for four years in order for his work as a painter to qualify as past 

relevant work. (Doc. 21 at 6.) But Burky cites no authority that a claimant must perform 

the job for the full recommended duration in order to learn it. In any event, Burky 

continued to work intermittently as a painter for during the next three years, which 

suggests he fully learned the job and could have performed such work at a substantial 

gainful level. Accordingly, the Court finds the ALJ did not err in concluding that Burky 

could perform his past relevant work as a painter.4

C. The ALJ Did Not Err In Evaluating Burky’s Credibility 

 Burky argues the ALJ erred in evaluating the credibility of his testimony regarding 

 

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. 

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the severity of his symptoms. (Doc. 16 at 18.) In evaluating credibility, the ALJ is 

required to 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, (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). “In reaching a credibility determination, an 

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). 

 At the hearing, Burky testified that he was let go from his last job because of 

depression and mood swings. (A.R. 36.) He stated that he has lived alone in an 

apartment for eight years and that his father takes care of his bills and supports him. (Id.

at 39-40.) Burky is able to take care of his hygiene, cook meals, and has a cat. (Id. at 

43.) During the day, he drinks his coffee, plays with his cat, calls his father, and watches 

TV. (Id. at 43.) His hobbies include watching baseball and playing guitar, which he 

plays twice a week. (Id. at 43-44.) He does not have any friends or a significant other, 

does not attend church, does not have a computer, and does not go out. (Id. at 44-45.) 

He does his own laundry, dishes, and other household cleaning. (Id. at 45.) He testified 

that he quit smoking and using alcohol three years ago. (Id. at 45-46.)5

 

 When asked why he was unable to work, Burky stated: “I get racing thoughts. 

My depression, sometimes I – if it’s not an angry mood swing, I’ll just start breaking out 

into tears for no reason at all. It’s really kind of hard to function when this goes on.” (Id.

at 47.) He stated that this occurs a couple times a week and that he is taking medication, 

which helps him most of the time. (Id.) Burky further stated that his condition 

prevented him from “[f]ollowing instructions, talking with bosses, having difference of 

 

5

 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.) 

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opinions the way things should be done and shouldn’t be done.” (Id.) Burky testified 

that he feared leaving his house and has hallucinations. (Id. at 48.) When he is on 

medication, he only experiences one mood swing each week. (Id. at 49.) He stated that 

he has dyslexia, which makes him easily distracted. (Id.) 

 The ALJ found Burky’s statements regarding the intensity, persistence and limited 

effects of his symptoms not fully credible because they were inconsistent with his 

activities of daily living and inconsistent with objective medical evidence in the record. 

(Id. at 20-21.) “[W]hether the claimant engaged in daily activities inconsistent with the 

alleged symptoms” is relevant to a claimant’s credibility. Molina v. Astrue, 674 F.3d 

1104, 1112 (9th Cir. 2012) (internal quotation marks omitted). Here, the ALJ noted that 

Burky “manage[d] well on his own” considering he handled his personal care, did 

laundry, household chores, cared for his cat, and prepared his own meals. (A.R. 20-21.) 

In addition, he noted that Burky is capable of handling his own finances, including 

paying bills, counting change, and using a savings account and checkbook, which 

undermines his claims that he cannot concentrate or carry out simple instructions. (Id. at 

232.) But these activities are done in isolation, without any work pressure, and involve 

little concentration. Consequently, the Court finds that these reasons, standing alone, are 

insufficient to discount Burky’s credibility.6

 

 This error is harmless, however, because the ALJ provided another sufficient 

reason. An ALJ may discount a claimant’s credibility if the “statements at [his] hearing 

do not comport with objective evidence in [his] medical record.” Bray, 554 F.3d at 1227. 

In making this finding, the ALJ cited Dr. Parsons’ treatment notes, discussed in length 

above, which document Burky’s improvement and demonstrate that he was doing well in 

treatment. (A.R. 21.) The ALJ also noted that, in Dr. Parsons’ opinion, Burky was 

 

6

 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. 

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consistently making progress in treatment and showing improvement. (Id.) Indeed, on 

several occasions during the latter stages of his treatment, Burky stated that he was doing 

well and that his medication was helping. In addition, the ALJ cited Dr. Tromp’s report, 

which found that Burky’s symptoms were less frequent after he began taking medication 

and that Burky exhibited stable mood, adequate memory, attention, concentration, and 

acted socially appropriate during his exams. (Id. at 314-15.) This evidence suggests 

Burky is able to interact with people one-on-one or in small group settings. It also 

undermines his testimony that his mood swings cause him to be unable to interact at all 

with coworkers or supervisors. The ALJ’s interpretation of the medical evidence is 

reasonable, and this reason is sufficient.7

 

 Accordingly, the Court finds the ALJ provided specific, clear, and convincing 

reasons for discounting Burky’s credibility regarding the severity of his symptoms, and 

that those reasons are supported by substantial evidence. Vasquez, 572 F.3d at 591. 

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. 

Douglas L. Rayes 

United States District Judge 

 

7

 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). 

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