Dennis Pigula v. Nancy Berryhill ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 26 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DENNIS KEITH PIGULA, No. 16-16845
Plaintiff-Appellant, D.C. No. 5:16-cv-01190-NC
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Nathanael M. Cousins, Magistrate Judge, Presiding
Submitted March 22, 2018**
Before: FARRIS, CANBY, and LEAVY, Circuit Judges.
Dennis Keith Pigula appeals pro se from the district court’s decision
affirming the Commissioner of Social Security’s denial of his application for
disability insurance benefits under Title II of the Social Security Act. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 1291. We review the district court’s decision de
novo, Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015), and we affirm.
The administrative law judge (“ALJ”) did not err in according “less weight”
to the contradicted opinions of two treating physicians because he provided several
specific and legitimate reasons, supported by substantial evidence, for his
assessment. See Trevizo v. Berryhill, 871F.3d 664, 675 (9th Cir. 2017). The ALJ
properly relied on the contradiction between the treating physicians’ assessment of
Pigula’s physical limitations and the objective medical evidence, including
pulmonary function test results and x-rays, see id. (referring to supportability and
consistency with the record); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d
1190, 1195 (9th Cir. 2004) (holding that ALJ properly discounted treating
physician’s opinion that was not supported by objective medical evidence); a
normal range of motion found on physical examination, See Batson, 359 F.3d at
1195; the short duration of one doctor’s treatment relationship with Pigula, see
Trevizo, 871 F.3d at 675; a plastic surgery specialist’s differing opinion regarding
hand limitations, see id.; and the limited time period addressed by the two treating
physicians, see Batson, 359 F.3d at 1194-95 (holding that claimant bears burden of
proving his disability).
At step five of the sequential analysis, the ALJ did not err in finding that
Pigula could perform jobs existing in significant numbers in the national economy.
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See Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006) (explaining
Commissioner’s burden of proof at step five). This finding did not contradict the
ALJ’s reliance, at step four, on the vocational expert’s testimony that Pigula could
not perform his past relevant work. See id. (addressing claimant’s burden at step
four). Any error in the ALJ’s failure to ask the vocational expert about other jobs
that Pigula could perform, despite a mild non-exertional impairment with respect
to his ability to perform complex tasks, was harmless because the range of medium
work existing in significant numbers in the national economy includes many
occupations for which complex tasks are not required. See 20 C.F.R. Part 404,
Subpt. P, App’x 2, § 203.15 (directing a finding of “not disabled” for a claimant of
advanced age, limited to medium work, with a high school education and no
transferable skills); Brown-Hunter, 806 F.3d at 492 (explaining that an error is
harmless if it is inconsequential to the ultimate nondisability determination).
Finally, neither medical evidence submitted for the first time to the Appeals
Council, nor new medical evidence attached to Pigula’s opening brief, warrants a
remand for further proceedings. This later-produced evidence is not probative of
whether Pigula was disabled prior to his date last insured. See Wood v. Burwell,
837 F.3d 969, 977 (9th Cir. 2016) (setting forth standard for “sentence-six” remand
for consideration of new evidence); Turner v. Comm’r of Soc. Sec., 613 F.3d 1217,
1224 (9th Cir. 2010) (holding that ALJ properly did not address a social worker’s
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post-insured-date opinion regarding a claimant’s ability to work).
AFFIRMED.
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