Dimicoe Whitfield v. Carolyn Colvin ( 2015 )

FILED
NOT FOR PUBLICATION JUL 13 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DIMICOE C. WHITFIELD, No. 14-15849
Plaintiff - Appellant, D.C. No. 2:13-cv-01177-CKD
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Carolyn K. Delaney, Magistrate Judge, Presiding**
Submitted July 9, 2015***
Before: LEAVY, GRABER, and OWENS, Circuit Judges.
Claimant Dimicoe C. Whitfield appeals the district court’s judgment
affirming the Commissioner of Social Security’s denial of his application 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).
supplemental security income under Title XVI of the Social Security Act. At step
five of the sequential evaluation process, the administrative law judge (ALJ) found
that Whitfield could perform jobs that exist in significant numbers in the national
economy. We have jurisdiction under 28 U.S.C. § 1291. We review de novo,
Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012), and we affirm.
Whitfield contends that the ALJ erred in assessing his residual functional
capacity (RFC). The ALJ’s determination that Whitfield had the RFC to perform
light work “except he requires simple unskilled work that is performed without
frequent public contact” was consistent with the restrictions identified by the
examining doctors. See Stubbs–Danielson v. Astrue, 539 F.3d 1169, 1173-75 (9th
Cir. 2008); Burch v. Barnhart, 400 F.3d 676, 682-84 (9th Cir. 2005) (ALJ
adequately considered obesity in RFC determination where record contained “no
evidence . . . of any functional limitations as a result of . . . obesity that the ALJ
failed to consider”). Accordingly, the RFC assessment was supported by
substantial evidence. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 886 (9th Cir.
2006) (“[T]he ALJ must only include [in the RFC] those limitations supported by
substantial evidence.”). Because substantial evidence independently supports the
RFC determination, we need not address Whitfield’s arguments that the ALJ erred
in relying, in part, on SSR 85-15 and the definition of “moderate” set forth in SSA
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Form HA-1152-U3.
Whitfield contends that the ALJ improperly relied on the Medical-
Vocational Guidelines (the grids) in making the step five determination, rather than
obtaining the testimony of a vocational expert. Use of the grids was appropriate.
“[A] vocational expert is required only when there are significant and sufficiently
severe non-exertional limitations not accounted for in the grid.” Hoopai v. Astrue,
499 F.3d 1071, 1076 (9th Cir. 2007) (internal quotation marks omitted). The
restriction to “simple unskilled work . . . performed without frequent public
contact” did not significantly limit Whitfield’s ability to perform unskilled light
work. See SSR 83-14; 20 C.F.R. pt. 404, subpt. P, app’x 2, § 202.00(b), (g).
Whitfield contends that the ALJ erred in finding his testimony regarding his
symptoms partially not credible. The ALJ provided specific, clear, and convincing
reasons for the credibility assessment, including inconsistencies between
Whitfield’s testimony regarding his limitations and the medical opinions and
documentary evidence. See Molina, 674 F.3d at 1112-13 (ALJ can reject claimant
testimony about severity of symptoms by offering specific, clear, and convincing
reasons); Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir.
2008) (“Contradiction with the medical record is a sufficient basis for rejecting the
claimant’s subjective testimony.”).
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Although the ALJ erred by failing to address Christina Whitfield’s lay
witness statement and testimony, the error was harmless because the statement and
testimony primarily concerned Claimant’s subjective complaints and did not
describe limitations beyond those already described by Claimant and validly
rejected by the ALJ. See Molina, 674 F.3d at 1121-22.
AFFIRMED.
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