Steven Yelovich v. Carolyn W. Colvin , 532 F. App'x 700 ( 2013 )

FILED
NOT FOR PUBLICATION JUN 27 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN B YELOVICH, No. 11-36071
Plaintiff - Appellant, D.C. No. 3:10-cv-05867-RAJ
v.
MEMORANDUM*
CAROLYN W. COLVIN (Acting),
Commissioner of Social Security, **
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Submitted March 8, 2013***
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
Michael J. Astrue, is substituted for his predecessor as Commissioner
of the Social Security Administration. Fed. R. App. P. 43 (c) (2).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: W. FLETCHER, RAWLINSON, and EBEL**** Circuit Judges.
Appellant Steven Yelovich (Yelovich) challenges the denial of his claim for
disability benefits.
1. Substantial evidence supports the ALJ’s conclusion that Yelovich was
not fully credible. His subjective complaints were inconsistent with his
conservative course of treatment and daily activities. Additionally, Yelovich
admitted to deceiving doctors about his methamphetamine use and presented
inconsistent testimony about his drug abuse. Under the circumstances, the ALJ’s
adverse credibility finding rested on permissible considerations. See Chaudhry v.
Astrue, 688 F.3d 661, 672 (9th Cir. 2012) (noting that when weighing credibility,
an ALJ may consider “(1) ordinary techniques of credibility evaluation, such as the
claimant’s reputation for lying, prior inconsistent statements concerning the
symptoms, and other testimony by the claimant that appears less than candid; (2)
unexplained or inadequately explained failure to seek treatment or to follow a
prescribed course of treatment; and (3) the claimant’s daily activities. . . .”).
****
The Honorable David M. Ebel, Senior Circuit Judge for the U.S.
Court of Appeals for the Tenth Circuit, sitting by designation.
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2. Substantial evidence also supports the ALJ’s RFC determination that
Yelovich was capable of sedentary work with some restrictions. The ALJ relied on
medical records indicating that Yelovich possessed normal ambulation with limited
range of motion restrictions, and could be treated conservatively with pain
medication and physical therapy. Psychological evaluations indicated that
Yelovich could perform “simple, repetitive tasks” as set forth in the RFC. The
ALJ presented “specific and legitimate” reasons for rejecting psychological
opinions outlining more severe deficits because Yelovich admitted to concealing
his drug use from those doctors. See Morgan v. Comm’r of Soc. Sec. Admin., 169
F.3d 595, 602-03 (9th Cir. 1999) (explaining that results of psychological testing
may be called into question based on a claimant’s drug use).
3. The hypothetical question posed to the vocational expert (VE)
incorporated all of the physical limitations from the RFC. Substantial evidence
supports the ALJ’s exclusion of a “reaching” restriction from the RFC and the
hypothetical because Yelovich’s doctor noted that his shoulder injury “should
improve.” Because the RFC was not defective, the hypothetical question posed to
the VE was proper. See Valentine v. Comm’r of Soc. Sec., 574 F.3d 685, 690 (9th
Cir. 2009) (explaining that the hypothetical question is derived from the RFC).
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5. At step five of the disability analysis, the burden shifts to the Social Security
Administration to demonstrate that the claimant is not disabled and that he can
engage in some type of substantial gainful activity “that exists in ‘significant
numbers’ in the national economy . . .” Lockwood v. Comm’r of Soc. Sec. Admin.,
616 F.3d 1068, 1071 (9th Cir. 2010). An ALJ can make this determination by
obtaining the testimony of a VE about the claimant’s vocational capacity. See id.The parties agree that the VE in this case incorrectly referenced two of the three
occupations he deemed Yelovich capable of performing. The VE’s testimony was
only accurate with respect to the occupation of document preparer. The VE
testified that 900 regional and 42,000 national jobs existed for this occupation.
“We have never set out a bright-line rule for what constitutes a ‘significant
number’ of jobs.” Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012), as
amended. In Beltran, we held that 135 regional and 1,680 national jobs was not a
significant number. See id. at 390. By contrast, we have held that as few as 1,266
regional jobs was a significant number and we have referenced cases finding as
few as 500 jobs significant. See Barker v. Sec’y of Health & Human Servs., 882
F.2d 1474, 1478-79 (9th Cir. 1989), as amended. Because the availability of 900
regional document preparer jobs is similar to numbers we have found “significant”
in the past, the VE’s error is harmless. See Burch v. Barnhart, 400 F.3d 676, 679
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(9th Cir. 2005) (holding that a disability finding is subject to harmless error
analysis). We do not decide whether the document preparer position is
inconsistent with Yelovich’s RFC limitation of “simple, repetitive tasks.”
Yelovich did not raise this argument with specificity until his reply brief, and has
therefore waived it. See Martinez-Serrano v. I.N.S., 94 F.3d 1256, 1259-60 (9th
Cir. 1996).
AFFIRMED.
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