Teresa Avilez v. Nancy Berryhill , 677 F. App'x 373 ( 2017 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
FEB 17 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
TERESA AVILEZ, No. 15-55906
Plaintiff-Appellant, D.C. No. 5:14-cv-00732-JPR
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Jean Rosenbluth, Magistrate Judge, Presiding
Submitted February 15, 2017**
Pasadena, California
Before: TALLMAN and N.R. SMITH, Circuit Judges, and MURPHY III,***
District Judge.
*
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).
***
The Honorable Stephen Joseph Murphy III, United States District
Judge for the Eastern District of Michigan, sitting by designation.
Teresa Avilez appeals the district court’s decision affirming the Social
Security Commissioner’s denial of disability benefits. We have jurisdiction under
28 U.S.C. § 1291. We review the district court’s judgment de novo and must affirm
the Commissioner’s denial of benefits if substantial evidence supports the legally
correct findings of the Administrative Law Judge (“ALJ”). Thomas v. Barnhart,
278 F.3d 947, 954 (9th Cir. 2002).
Substantial evidence supports the ALJ’s decision. The ALJ determined that
Avilez retained a residual functional capacity (“RFC”) to perform light work with
an additional restriction: she could only stand or walk two hours out of an eight-
hour work day. AR 16; see Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000)
(finding that an RFC may deviate from the Commissioner’s Medical-Vocational
Guideline grids “[w]hen the grids do not completely describe the claimant’s
abilities and limitations”). Since the RFC fell between the categories of light and
sedentary, the ALJ correctly decided to consult a vocational expert (“VE”) for
expert testimony. AR 25; see, e.g., Thomas, 278 F.3d at 960 (holding that “a
vocational expert must be consulted” when an RFC falls between two categories).
The ALJ properly relied on the VE's testimony because “[t]he hypothetical
that the ALJ posed to the VE contained all of the limitations that the ALJ found
credible” — including Avilez’s additional stand or walk limitation. Bayliss v.
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Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). Moreover, the VE based his
uncontradicted opinion on twenty years of experience, knowledge of
characteristics, and requirements of jobs in the local area, and review of the
evidence. See AR 94–100; see also AR 94 (Avilez’s stipulation to the VE’s
qualifications as an “impartial vocational expert”); see generally AR 208–11 (VE’s
curriculum vitae). Avilez failed to rebut the VE’s testimony and offer evidence to
support her assertion that the jobs found to be available to her (cashier II and
information clerk) should be classified as sedentary. And to the extent the VE’s
testimony differed from the Dictionary of Occupational Titles, the ALJ correctly
relied on the expert testimony because the VE provided “persuasive evidence to
support the deviation.” Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995).
AFFIRMED.
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