Deanna Tweedy v. Css , 460 F. App'x 659 ( 2011 )

                                                                           FILED
NOT FOR PUBLICATION                             DEC 01 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DEANNA TWEEDY,                                   No. 10-17437
Plaintiff - Appellant,             D.C. No. 1:09-cv-00548-GSA
v.                                             MEMORANDUM *
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Gary S. Austin, Magistrate Judge, Presiding
Submitted November 29, 2011 **
San Francisco, California
Before: THOMAS and CLIFTON, Circuit Judges, and EZRA, 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 David Alan Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
Appellant Deanna Tweedy (“Tweedy”) appeals the district court’s judgment
affirming the Social Security Commissioner’s denial of her application for
disability insurance benefits under Title II of the Social Security Act (“the Act”).
The Administrative Law Judge (“ALJ”) concluded that Tweedy was not “disabled”
within the meaning of the Act because she could still perform her past relevant
work as a teacher’s aide. Since the facts are familiar to the parties, we do not recite
them here except as necessary to explain our disposition. We have jurisdiction
under 

28 U.S.C. § 1291

, and review the district court’s decision de novo. Bray v.
Comm’r of Soc. Sec. Admin., 

554 F.3d 1219

, 1222 (9th Cir. 2009). We affirm.
First, the ALJ did not err in determining that Tweedy’s alleged hand
impairment was “non-severe” because substantial evidence in the record supports a
finding that this impairment did not significantly limit her ability to do basic work
activities, or had only a “minimal effect” on her ability to perform such activities.
See 

20 C.F.R. § 404.1520

(a)(4)(ii), (c); see also Webb v. Barnhart, 

433 F.3d 683

,
686 (9th Cir. 2005). In making this determination, the ALJ properly observed that
there was no objective medical evidence to substantiate any diagnosis regarding
her hands. Additionally, the district court properly concluded that the radiology
exam report prepared by Dr. Rohn after the ALJ’s decision did not warrant a
remand because there was no “reasonable possibility” that this new evidence
2
would have changed the outcome of the administrative hearing. See Mayes v.
Massanari, 

276 F.3d 453

, 462 (9th Cir. 2001).
Next, we find that the ALJ provided specific and legitimate reasons,
supported by substantial evidence in the record, for rejecting the opinions of
treating physician Dr. Anderson and examining physician Dr. Hernandez regarding
Tweedy’s functional limitations. See Lester v. Chater, 

81 F.3d 821

, 830–31 (9th
Cir. 1995) (holding that an ALJ must provide “specific and legitimate reasons
supported by substantial evidence in the record” for rejecting the contradicted
opinion of a treating or examining physician). Accordingly, the ALJ did not err in
rejecting those opinions. See Thomas v. Barnhart, 

278 F.3d 947

, 957 (9th Cir.
2002) (“The ALJ need not accept the opinion of any physician, including a treating
physician, if that opinion is brief, conclusory, and inadequately supported by
clinical findings.”)
Since we conclude that the ALJ’s rejection of the limitations assessed by
Drs. Anderson and Hernandez was permissible, we likewise conclude that the ALJ
did not err in failing to incorporate those limitations into Tweedy’s residual
functional capacity (“RFC”) or the hypothetical posed to the vocational expert.
See Batson v. Comm’r of Soc. Sec. Admin., 

359 F.3d 1190

, 1197 (9th Cir. 2004)
(“The ALJ was not required to incorporate evidence from the opinions of
3
[claimant]’s treating physicians, which were permissibly discounted.”); see also
Stubbs-Danielson v. Astrue, 

539 F.3d 1169

, 1175–76 (9th Cir. 2008) (holding that
a hypothetical that excluded limitations outside of the RFC was not incomplete);
Robbins v. Soc. Sec. Admin., 

466 F.3d 880

, 886 (9th Cir. 2006) (“[I]n hypotheticals
posed to a vocational expert, the ALJ must only include those limitations supported
by substantial evidence.”).
Finally, the ALJ did not err in concluding that Tweedy was capable of
performing her past relevant work as a teacher’s aide. A claimant is not disabled
under the Act if she can perform her past relevant work either as actually
performed or as generally performed in the national economy. SSR 82-61; Pinto v.
Massanari, 

249 F.3d 840

, 845 (9th Cir. 2001). Since the ALJ’s conclusion
regarding her previous work, as actually performed, is supported by substantial
evidence in the record, the Court need not address Tweedy’s argument regarding
the DOT, which relates to the determination of how a job is generally performed in
the national economy.1 See SSR 82-61 (“The [DOT] descriptions can be relied
upon–for jobs that are listed in the DOT–to define the job as it is usually performed
in the national economy.”).
1
Indeed, the ALJ did not make any conclusions regarding Tweedy’s past
relevant work as generally performed in the national economy.
4
AFFIRMED.
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