Roxsan Young v. Andrew Saul ( 2021 )

FILED
NOT FOR PUBLICATION
FEB 10 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROXSAN DAWN YOUNG, No. 19-15957
Plaintiff-Appellant, D.C. No. 1:18-cv-00055-JDP
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Jeremy D. Peterson, Magistrate Judge, Presiding
Submitted February 8, 2021**
San Francisco, California
Before: BERZON, CHRISTEN, and BADE, Circuit Judges.
Roxsan Young appeals the district court’s decision affirming the
Commissioner of Social Security’s denial of her applications for disability and
supplemental security income. We have jurisdiction pursuant to 28 U.S.C. § 1291*
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).
and we affirm. The parties are familiar with the facts and we recount them only as
necessary to resolve the arguments on appeal.
We review de novo and may set aside a denial of benefits only if it is
unsupported by substantial evidence or the administrative law judge (ALJ)
committed legal error. Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020).
Young argues the ALJ erred at step four by determining Young could
perform her past work as a mail clerk and order clerk. In particular, Young argues
the ALJ’s decision was not supported by substantial evidence because the ALJ
asked the vocational expert (VE) if Young could perform her past work assuming,
among a number of other limitations, that Young needs to rest and elevate her legs
for 15 minutes every two hours during regular rest and meal breaks. Young argues
“the question direct[ed] the [vocational expert] to assume something that is
fundamentally not true: that workers can rest and elevate their legs for 15 minutes
every two hours during breaks and lunch.”
We are not persuaded. Read in context, the ALJ asked the VE whether a
hypothetical person with Young’s residual functional capacity could perform
Young’s past work of mail clerk and order clerk. The hypothetical included the
limitation that Young needs to rest and elevate her legs for 15 minutes every two
hours. The ALJ asked the VE to assume these limitations. The VE confirmed that
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Young could perform her past work as an order clerk as it is generally performed,
but not as she previously performed it, and a mail clerk as she previously
performed it, but not as it is generally performed, given the stated limitations. The
ALJ’s finding at step four that Young was not disabled because she could perform
her past work was supported by substantial evidence. See Biestek v. Berryhill, 139
S. Ct. 1148, 1155 (2019) (observing that a vocational expert’s testimony “would be
the kind of evidence—far ‘more than a mere scintilla’— that ‘a reasonable mind
might accept as adequate to support’ a finding about job availability”) (quoting
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The ALJ did not err by
concluding that Young had not met her burden of showing that she can no longer
perform her past relevant work. See Pinto v. Massanari, 249 F.3d 840, 844 (9th
Cir. 2001).
Young’s remaining arguments fare no better. Young suggests that the ALJ
improperly considered a disability accommodation as part of the disability
framework. This argument rests on the faulty premise that taking 15 minutes to
rest and elevate one’s legs during “normal breaks and the lunch period,” is an
accommodation.
3
Young also argues that some states require only a 10-minute rest period in
the middle of each four hours worked. This is a minimum requirement, not a
maximum.
AFFIRMED.
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