John Shannon v. Carolyn W. Colvin , 540 F. App'x 635 ( 2013 )

FILED
NOT FOR PUBLICATION SEP 20 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN SHANNON, No. 11-56721
Plaintiff - Appellant, D.C. No. 5:10-cv-00359-AGR
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Alicia G. Rosenberg, Magistrate Judge, Presiding**
Submitted July 12, 2013***
Before: HUG, FARRIS, and LEAVY, Circuit Judges.
John Shannon appeals pro se from the district court’s judgment affirming the
Commissioner of Social Security’s (“Commissioner”) denial of his applications for
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Social Security disability insurance benefits and supplemental security income
benefits under Titles II and XVI the Social Security Act. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm.
We review de novo the district court’s decision upholding the denial of
benefits. Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). We must affirm
the denial of benefits unless it is based on legal error or the findings of fact are not
supported by substantial evidence. Valentine v. Comm’r Soc. Sec. Admin., 574
F.3d 685, 690 (9th Cir. 2009).
At step five of the sequential evaluation process, the administrative law
judge (“ALJ”) concluded that Shannon could perform work that existed in
significant numbers in the national economy. Shannon contends that the ALJ erred
by ignoring the lay witness testimony. Although the ALJ erred by disregarding
this testimony without comment, see Molina v. Astrue, 674 F.3d 1104, 1114 (9th
Cir. 2012), the ALJ’s error is harmless. See id. at 1121-22 (error harmless when
the same evidence the ALJ referred to in discrediting the claimant’s testimony also
discredits the lay witness’s statements). Shannon also contends that the ALJ
ignored evidence indicating there was no substantial work appropriate for him.
Although a vocational expert testified that there were no jobs for a hypothetical
individual with limitations to the extent claimed by Shannon, the ALJ offered
2 11-56721
specific, clear and convincing reasons for rejecting Shannon’s testimony about the
extent of his limitations on which the expert’s testimony was based. See
Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). Accordingly,
substantial evidence supports the ALJ’s determination that the Commissioner
carried his burden to prove that Shannon can engage in work existing in significant
numbers in the national economy. 20 C.F.R. § 404.1520(a)(4)(v); Lockwood v.
Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). Shannon’s
remaining arguments regarding the ALJ’s findings are without merit.
While this case was pending in the district court, Shannon filed a subsequent
application for benefits for which he received a favorable decision, issued October
21, 2011. Shannon contends benefits should be granted in this case because the
evidence submitted was also submitted in his subsequent case. Although remand
may be appropriate where a subsequent, approved application had an onset date
close in time to the denial under review, and it is unclear from the record whether
the decisions are reconcilable, Luna v. Astrue, 623 F.3d 1032, 1034-35 (9th Cir.
2010), the claimed disability onset date in the present case is in 2007, and in the
subsequent favorable case, the disability onset date is in 2010, which is not close in
time to the present case. Additionally, the subsequent favorable case contained
3 11-56721
different medical evidence and Shannon’s older age category. Accordingly, a
remand is unwarranted.
AFFIRMED.
4 11-56721