Richard Norton v. Michael Astrue ( 2012 )


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  •                                                                            FILED
    NOT FOR PUBLICATION                            MAR 30 2012
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    RICHARD L. NORTON,                               No. 10-55878
    Plaintiff - Appellant,            D.C. No. 5:09-cv-01865-R-CT
    v.
    MEMORANDUM *
    MICHAEL J. ASTRUE, Commissioner of
    Social Security,
    Defendant - Appellee.
    Appeal from the United States District Court
    for the Central District of California
    Manuel L. Real, District Judge, Presiding
    Submitted February 16, 2012 **
    Pasadena, California
    Before: PREGERSON and BEA, Circuit Judges, and PRATT, District Judge.***
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    ***
    The Honorable Robert W. Pratt, District Judge for the U.S. District
    Court for Southern Iowa, sitting by designation.
    Richard L. Norton (“Norton”) appeals from a denial of disability insurance
    benefits under Title II and Title XVI of the Social Security Act. The
    Administrative Law Judge (“ALJ”) upheld the Commissioner of Social Security’s
    (“Commissioner”) finding that Norton was not disabled. A timely request for
    review was declined by the Appeals Council. We review that court’s judgment in
    favor of the Commissioner pursuant to 
    28 U.S.C. § 1291
    . We affirm.
    At Step Five of the Sequential Analysis, the ALJ found that Norton: (1) had
    not worked since his alleged disability onset date of January 1, 2005; (2) has severe
    impairments of seizure disorder and lower back pain; (3) Norton’s severe
    impairments do not meet or equal one of the Listed Impairments described in 20
    C.F.R. Pt. 404, Subpt. P, App. 1; (4) retained the residual functional capacity to
    perform medium work and simple, repetitive tasks, but should not perform
    repetitive overhead motions and should not be exposed to hazards; and, (5) work
    exists in significant numbers that Norton is capable of performing. In making the
    finding of residual functional capacity, the ALJ found that Norton’s statements
    regarding the intensity, persistence, and limiting effects of his symptoms were
    credible only to the extent they were consistent with the residual functional
    capacity finding.
    Except for Norton’s brief hospitalization in July 2005, there is no other
    medical evidence which offers any explanation for Norton’s claims of inability to
    function because of fatigue and shortness of breath. No doctor opined that Norton
    should not work because of his impairments. Assuming, arguendo, that the ALJ
    did not properly articulate why he did not fully credit the testimony of Norton or
    his sister, a remand to correct the supposed errors would not result in a different
    decision, because, on this record, no reasonable ALJ would find that the evidence
    supports a finding of disability. See Stout v. Commissioner, Social Sec. Admin,
    
    454 F.3d 1050
    , 1056 (9th Cir. 2006).
    The hypothetical question that the ALJ put to the vocational expert
    adequately described the limitations of Norton’s severe impairments. See
    Desrosiers v. Secretary of Health and Human Services, 
    846 F.2d 573
    , 578 (9th Cir.
    1988).
    Norton’s argument that the Commissioner constructively reopened his claim
    must also fail. As the Commissioner points out, there is nothing before this court
    to support a finding that the period of disability beginning May 14, 2009, was
    based on the same evidence available during the period under consideration before
    the ALJ.
    Accordingly, the decision of the District Court is AFFIRMED.
    

Document Info

Docket Number: 10-55878

Filed Date: 3/30/2012

Precedential Status: Non-Precedential

Modified Date: 12/22/2014