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Burns v. Commissioner Social Security Administration

United States District Court, D. Oregon

July 10, 2015


Tim Wilborn, Wilborn Law Office, P.C., Las Vegas, NV, Attorney for Plaintiff.

Billy J. Williams, Acting United States Attorney, District of Oregon, Ronald K. Silver, Assistant United States Attorney, Portland, OR, L. Jamala Edwards, Special Assistant United States Attorney, Social Security Administration, SSA Office of General Counsel, Seattle, WA, Attorneys for Defendant.


MARCO A. HERNNDEZ, District Judge.

Plaintiff Christopher Andre Burns brings this action under the Social Security Act ("Act"), 42 U.S.C. § 405(g), for judicial review of the Commissioner of Social Security's final decision denying his claim for Disability Insurance Benefits ("DIB") under Title II of the Act. Because it is based on legally sufficient reasons supported by substantial evidence, the Commissioner's decision is affirmed.


Burns's medical problems started in earnest after he was assaulted with a tree branch in 2007 and suffered a traumatic brain injury. Tr. 253. After recovering from emergency surgery in the hospital, he moved in with his mother. Tr. 28. He experienced cognitive impairment, confusion, and short term memory issues. Tr. 240-41. His primary problem, however, was constant, throbbing headaches. Tr. 239-41. Over the years, he has visited multiple doctors and pain specialists to treat the headaches, with little success finding lasting relief. Tr. 412-31, 446, 527, 529-36, 1021-42.

Burns applied for Supplemental Security Income ("SSI") and DIB on April 5, 2007. Tr. 149, 154. The Commissioner denied both applications, and Burns requested a hearing before an Administrative Law Judge ("ALJ"). Tr. 65. After a hearing in March of 2010, ALJ Deborah Van Vleck found Burns was not disabled. Tr. 5-18. Burns appealed, but the Appeals Council denied his request for review. Tr. 1-3. Burns then filed a civil action in this court in 2011, and after the parties stipulated that the case should be remanded for further administrative proceedings, Magistrate Judge John Jelderks issued an order to that effect in February of 2012. Tr. 717-21. On remand, ALJ Riley Atkins held a new hearing on July 1, 2013, and ruled on July 10, 2013, that Burns was disabled as of January 1, 2011. Tr. 565, 584. Burns was, therefore, entitled to SSI benefits, but since his date of last insured for DIB benefits was March 31, 2009, he was not entitled to disability benefits. Tr. 584. Burns again appealed the ALJ's decision to the Appeals Council, which denied his request for review, making ALJ Atkins's ruling the Commissioner's final decision that Burns now challenges in this Court.


A claimant is disabled if he is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which... has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). Disability claims are evaluated according to a five-step procedure. See Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). Each step is potentially dispositive. At step one, the presiding ALJ determines whether the claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled; if not, the analysis continues. 20 C.F.R. §§ 404.1520(b), 416.920(b). At step two, the ALJ determines whether the claimant has one or more severe impairments. If not, the claimant is not disabled. 20 C.F.R. §§ 404.1520(c), 416.920(c). At step three, the ALJ determines whether the impairment meets or equals one of the impairments listed in the SSA regulations and deemed "so severe as to preclude substantial gainful activity." Bowen v. Yuckert, 482 U.S. 137, 141 (1987); 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the analysis moves to step four. 20 C.F.R. §§ 404.1520(d), 416.920(d). At step four, the ALJ determines whether the claimant, despite any impairments, has the residual functional capacity ("RFC") to perform past relevant work. 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant cannot perform his or her past relevant work, the analysis moves to step five, where the ALJ determines whether the claimant is able to do any other work in the national economy considering the claimant's RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(g), 416.920(g).

The burden to show disability rests with the claimant at steps one through four, but if the analysis reaches step five, the burden shifts to the Commissioner to show that a significant number of jobs exist in the national economy that the claimant could perform. 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f); Tackett v. Apfel, 180 F.3d 1094, 1098-1100 (9th Cir. 1999). If the Commissioner demonstrates a significant number of jobs exist in the national economy that the claimant can perform, the claimant is not disabled. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g).


Before proceeding through the five-step evaluation, ALJ Atkins found that Burns had "acquired sufficient quarters of coverage to remain insured through March 31, 2009, " meaning Burns had to establish disability on or before that date to be entitled to disability insurance benefits. Tr. 569-70. At step one, the ALJ found that Burns had not engaged in substantial gainful activity since 2006. Tr. 572. At step two, the ALJ found that Burns had the "following severe impairments: residual effects of traumatic brain injury, with temporal bone fracture and chronic residual headaches; degenerative disc disease of the cervical spine; and alcohol abuse disorder." Tr. 572. At step three, the ALJ found Burns's impairments did not meet or equal the requirements of a listed impairment under 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 572. Next, the ALJ found that, from February 19, 2007, through December 31, 2010, Burns had the following RFC:

[C]laimant had the residual functional capacity to perform light work as defined in 20 CFR 404.7567(b) and 416.967(b) except: lift twenty pounds occasionally and ten pounds frequently; stand and walk six hours total of an eight-hour day; no sitting limitations; occasionally climb ramps and stairs, but no other climbing; avoid concentrated exposure to hazards such as heights and dangerous machinery; occasionally crawl and crouch; remember and carry out simple, one to two step demands, but would have difficulty with more detailed tasks; might have difficulty maintaining concentration for extended periods, but able to sustain over an eight-hour workday if given breaks every couple hours; occasional public contact; and routine, casual interactions with co-workers and supervisors.

Tr. 575. At step four, the ALJ found that Burns could not perform any past relevant work since February 19, 2007, the date Burns suffered his traumatic brain injury. Tr. 576, 580. Prior to January 1, 2011, the ALJ found that Burns could work as a room cleaner, laundry worker, and small products assembler. Tr. 581. After January 1, 2011, however, the ALJ found that Burns had greater limitations. Tr. 582. The ALJ's new RFC included the same pre-2011 limitations and a new limitation that Burns "would on an occasional basis suffer marked deficits in concentration and attention." Tr. 582. The eroding of Burns's skills led the ALJ to find him disabled as of January 1, 2011, and Burns was thus entitled to SSI benefits beginning on that date. Tr. 584. Burns was not entitled, however, to disability benefits because he was not disabled between his filing date of March 20, 2007, and March 31, 2009, the date he was last insured. Tr. 584.


The district court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g); see also Andrews v. Shalala, 53 F.3d 1035, 1039 (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." Id . The court must weigh all of the evidence, whether it supports or detracts from the Commissioner's decision. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). If the evidence is susceptible to more than one reasonable interpretation, the court must uphold the decision. Andrews, 53 F.3d at 1039-40. A reviewing court must consider the entire record as a whole and cannot affirm the Commissioner by simply isolating a specific quantum of supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citation omitted).


Burns contends the ALJ erred by 1) improperly rejecting the opinion of Dr. Kimberly Goslin, Burns's treating neurologist, 2) improperly rejecting Burns's testimony about his symptoms, 3) improperly rejecting lay witness statements, 4) failing to support with substantial evidence his pre-2011 step five finding that Burns could perform certain occupations, and 5) failing to ...

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