David Waltrip v. Andrew Saul ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 15 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID WALTRIP, No. 18-16822
Plaintiff-Appellant, D.C. No. 2:17-cv-001390-EFB
v.
MEMORANDUM*
ANDREW SAUL, Commissioner of Social
Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Edmund F. Brennan, Magistrate Judge, Presiding
Submitted April 15, 2021**
San Francisco, California
Before: D. NELSON, CLIFTON, and BUMATAY, Circuit Judges.
David Waltrip appeals the district court’s affirmance of the Commissioner of
Social Security’s denial of his application for disability insurance benefits under
Title II of the Social Security Act. We have jurisdiction under 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 42 U.S.C. § 405(g). We review de novo, Attmore v. Colvin, 827 F.3d 872, 875
(9th Cir. 2016), and we affirm.
The court may reverse only if the Administrative Law Judge (ALJ)
committed legal error or reached a decision not supported by substantial evidence.
Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). The ALJ’s decision that
Waltrip could perform his past relevant work as a document copier was supported
by substantial evidence and a review of the medical record as a whole. The only
evidence in the record on which Waltrip relies to argue that he cannot perform his
past relevant work is the opinion of examining physician Dr. Winnie Tan.
However, the ALJ gave great weight to Dr. Tan’s opinion and accounted for her
findings and recommendations in the RFC by limiting Waltrip’s exposure to
heights and hazards.
Waltrip relies on evidence outside the relevant period to support his
argument that bilateral knee disease prevents him from performing his past
relevant work. To be sure, evidence from outside the relevant period may
sometimes be relevant to assess retroactively a prior condition or impairment or
reflect how a condition has worsened over time. See Smith v. Bowen, 849 F.2d
1222, 1225–26 (9th Cir. 1988). The evidence Waltrip cites, however, does not
contradict the evidence from the relevant period, nor does he present any medical
opinion that retroactively contradicts the opinion of Dr. Tan. The ALJ conducted a
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thorough review of the medical evidence from the relevant period and found no
medical opinion or evidence to support the alleged severity of Waltrip’s bilateral
knee pain. The ALJ relied on evidence in the record which indicated that Waltrip
had full range of motion in his knees and no swelling, that doctors had
recommended conservative treatment such as diet and exercise changes, and that
Waltrip had stopped working due to a business layoff, not his medical condition,
and that his condition had not deteriorated since. The ALJ also considered
Waltrip’s statements about his knee pain to Dr. Tan. However, Dr. Tan’s opinion
did not assess any limitations due to disabling knee pain.
Moreover, the ALJ properly reviewed the medical evidence and concluded
that Waltrip’s bladder and kidney issues did not constitute a severe impairment
because the medical record indicated that Waltrip’s symptoms were “much better”
and “almost resolved” following surgical intervention.
Contrary to Waltrip’s argument, there was no conflict between the
Vocational Expert’s testimony and the Dictionary of Occupational Titles job
category for document copier, nor is there any evidence in the record from the
relevant period supporting Waltrip’s claim that he was unable to move accurately
or swiftly. Finally, the ALJ did not err by failing to apply Medical-Vocational
Grid Rule 201.14. The grids are employed at step five of the sequential evaluation
process to assist in determination of whether sufficient jobs exist in the national
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economy that a claimant may perform. See Tackett v. Apfel, 180 F.3d 1094, 1101
(9th Cir. 1999). The ALJ properly ended his inquiry at step four, so he did not err
by failing to apply the grids.
AFFIRMED.
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