Ron Hill v. Michael Astrue , 365 F. App'x 808 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 16 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RON HILL, No. 09-35342
Plaintiff - Appellant, D.C. No. 2:08-cv-00966-CRD
v.
MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Carolyn R. Dimmick, District Judge, Presiding
Submitted February 3, 2010**
Seattle, Washington
Before: ALARCÓN, W. FLETCHER and RAWLINSON, Circuit Judges.
Ron Hill appeals from the district court’s judgment affirming the
Commissioner’s final decision concluding that Hill is not entitled to Supplemental
Social Security Income (SSI) benefits under Title XVI of the Social Security Act,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
42 U.S.C. § 1383f. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo the district court’s review of the Commissioner’s decision. Gillett-Netting v.
Barnhart, 371 F.3d 593, 595 (9th Cir. 2004). We affirm the decision of the
Commissioner if it is supported by substantial evidence and the Commissioner
applied the correct legal standards. Batson v. Comm’r of Soc. Sec. Admin., 359
F.3d 1190, 1193 (9th Cir. 2004). The Commissioner’s findings are upheld if
supported by inferences reasonably drawn from the record. Gallant v. Heckler,
753 F.2d 1450, 1452-53 (9th Cir. 1984). If evidence exists to support more than
one rational interpretation, we must defer to the Commissioner’s decision. Morgan
v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). We affirm.
I
Hill contends the administrative law judge’s (“ALJ”) residual functional
capacity (“RFC”) finding that limited Hill to “medium work” was in error because
the ALJ improperly evaluated medical opinions of two physicians, Drs. Raymond
West and Alnoor Virji, who opined that Hill could perform “light work with
postural limitations.” Hill also contends that the ALJ improperly relied upon the
vocational expert’s (“VE”) testimony at step five of the evaluative process.
Substantial evidence supports the ALJ’s physical RFC assessment that Hill
is capable of performing medium capacity work. See Webb v. Barnhart, 433 F.3d
2
683, 686 (9th Cir. 2005) (“Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”). Hill’s
contention that the ALJ erred in not crediting Dr. West’s 2003 physical RFC
assessment is unsupported by the record. In 2003, Dr. West reported that Hill was
“remarkably well built and muscular,” with good motor strength and good range of
motion and that Hill had indicated he could “lift 100 pounds, but cannot carry it for
long.” Notwithstanding these findings, Dr. West concluded that Hill was limited to
working at a light exertional work level. The ALJ rejected Dr. West’s opinion, in
part, because the ALJ concluded that Hill’s subjective reports about his medical
condition, as provided to Dr. West, were not credible. Hill has not appealed the
ALJ’s credibility findings.
Later in 2003, Dr. Virji reviewed Hill’s medical records and, relying on Dr.
West’s observations, issued an opinion which largely echoed Dr. West’s opinion
that Hill be limited to light work. Dr. Virgi also noted in his RFC assessment that
“[Hill] is not credible.”
The ALJ credited a more recent medical assessment, completed on February
10, 2006 by Dr. Jeffrey Merrill, over the evaluations of Drs. West and Virji. Dr.
Merrill’s assessment took into account an additional three years of medical records
and concluded that Hill’s records indicate he has “normal strength, without
3
paresthesias or radiating symptoms,” continues to work out and exercise, takes
walks, goes shopping, fixes meals and is able to care for his personal needs.
Similarly, a case analysis filed on May 18, 2006 by Dr. Stephen Goldberg noted
that Hill “works out regularly and has the body of an athlete.” Dr. Goldberg
agreed with Dr. Merrill’s assessment as to Hill’s RFC. Accordingly, the ALJ’s
finding that Hill is capable of medium capacity work is more than supported by
inferences reasonably drawn from the record. Heckler, 753 F.2d at 1452-53.
II
Hill’s argument that the ALJ erred in relying on testimony by the VE which
conflicted with information provided in the United States Department of Labor’s
Dictionary of Occupational Titles (4th ed. 1991) (“DOT”) is also unpersuasive.
“[T]he VE must identify a specific job or jobs in the national economy having
requirements that the claimant’s physical and mental abilities and vocational
qualifications would satisfy.” Osenbrock v. Apfel, 240 F.3d 1157, 1162-1163 (9th
Cir. 2001) (citing 20 C.F.R. § 404.1566(b); Burkhart v. Bowen, 856 F.2d 1335,
1340 n.3 (9th Cir. 1988)). Here, the ALJ relied on the VE’s testimony that a
person with Hill’s RFC is capable of performing work that is available in
significant numbers in the national economy such as a kitchen helper, laundry
worker, or warehouse laborer.
4
The ALJ and VE used the terms “simple, routine tasks” and “simple,
repetitive tasks” interchangeably in discussing the types of jobs Hill may be
capable of performing. The ALJ’s error, if any, was harmless as no confusion was
created, the alleged conflict was not material, and there was no meaningful
departure from the DOT as presented by the VE. Stout v. Comm’r of Soc. Sec.
Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). “A decision of the ALJ will not be
reversed for errors that are harmless.” Burch v. Barnhart, 400 F.3d 676, 679 (9th
Cir. 2005).
AFFIRMED.
5
FILED
Hill v. Astrue, Case No. 09-35342 FEB 16 2010
Rawlinson, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in the result.