Connie Earnshaw v. Commissioner of Social Security , 357 F. App'x 36 ( 2009 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 16 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
CONNIE EARNSHAW, No. 08-56004
Plaintiff - Appellant, D.C. No. 5:07-cv-01296-VBK
v.
MEMORANDUM *
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Victor B. Kenton, Magistrate Judge, Presiding
Argued and Submitted October 6, 2009
Pasadena, California
Before: KLEINFELD and TALLMAN, Circuit Judges, and TRAGER,** District
Judge.
Connie Earnshaw appeals from the district court’s judgment, which affirmed
the ALJ’s finding that she is not disabled. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable David G. Trager, Senior United States District Judge
for the Eastern District of New York, sitting by designation.
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The ALJ found that Earnshaw was of advanced age, could no longer perform
her past work, and had a residual functional capacity to perform “a slightly
narrowed range of light work.” At the hearing, the vocational expert identified
only one sedentary occupation, receptionist, that Earnshaw could perform given
her limitations. Because the vocational expert’s testimony designated only one job
Earnshaw could perform, within the sedentary category, the sedentary grid rules
apply. See Distasio v. Shalala, 47 F.3d 348, 350 (9th Cir. 1995).
Earnshaw argues that under Lounsburry v. Barnhart, 468 F.3d 1111 (9th Cir.
2006), she must be found disabled as a matter of law because the vocational expert
identified only one occupation that she could perform. Lounsburry is inapplicable,
however, because the sedentary grid rules (and not the light work grid rules) apply
to this case. The outcome is instead controlled by Tommasetti v. Astrue, 533 F.3d
1035, 1043-44 (9th Cir. 2008). In Tommassetti, the vocational expert identified
only one sedentary occupation that the claimant could perform, but for which jobs
existed in significant numbers in the national economy. Id. at 1038. Tommassetti
held that under the sedentary grid rules this constituted a “significant range of
work” and the claimant was not disabled. Id. at 1043-44. In this case, Earnshaw
was found to be capable of performing the sedentary occupation of receptionist, for
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which jobs exist in significant numbers in the national economy. Thus, the ALJ
properly concluded that Earnshaw is not disabled.
Earnshaw also argues that the ALJ did not properly consider the opinions of
her treating physicians, Dr. Walker and Dr. Wood. Earnshaw is incorrect. The
ALJ properly considered the testimony of Earnshaw’s treating physicians, and
listed specific, legitimate reasons based on substantial evidence in the record for
rejecting their findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989).
Finally, Earnshaw argues that the ALJ failed to consider the lay testimony of
Earnshaw’s sister-in-law, Tana Earnshaw. Any potential error here was harmless
because the testimony was not clearly competent or favorable to the claimant.
Stout v. Comm’r, Soc. Security Admin., 454 F.3d 1050, 1055 (9th Cir. 2006).
Tana Earnshaw’s testimony indicated insufficient contact with the claimant to
provide relevant evidence of the claimant’s ability to work, and as a whole
undermined rather than supported the claimant’s disability claim.
AFFIRMED.
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