Edmond Talley v. Kilolo Kijakazi ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 15 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDMOND TALLEY, No. 21-55071
Plaintiff-Appellant, D.C. No. 5:19-cv-02087-SK
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Steve Kim, Magistrate Judge, Presiding
Submitted December 10, 2021**
Pasadena, California
Before: M. SMITH, LEE, and FORREST, Circuit Judges.
Claimant Edmond Talley appeals from the district court’s order affirming the
Commissioner’s denial of his applications for disability insurance benefits under
Title II and supplemental security income under Title XVI of the Social Security
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Act. We have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291. We
review the district court’s order de novo and reverse only if the Administrative Law
Judge’s (ALJ) decision was not supported by substantial evidence or was based on
legal error. Larson v. Saul, 967 F.3d 914, 922 (9th Cir. 2020). We affirm.
1. The ALJ permissibly relied on a vocational expert’s response to a
hypothetical question, even though the hypothetical did not explicitly incorporate
Talley’s six-hour standing and walking limitation. The ALJ told the vocational
expert to consider the functional capacity for “light work as defined in appendix 2
subpart P in the regulations” with certain other non-exertional mental limitations.
As with “medium work,” “light work” is “a term of art in disability law with a well-
established meaning,” Terry v. Saul, 998 F.3d 1010, 1013 (9th Cir. 2021), that
includes a limitation of “standing or walking, off and on, for a total of approximately
6 hours of an 8-hour workday,” SSR 83-10, 1983 WL 31251, at *6 (Jan. 1, 1983).
Thus, the vocational expert would have understood the ALJ’s instructions regarding
Talley’s residual functional capacity to include this limitation. See Terry, 998 F.3d
at 1013.
2. Talley forfeited his challenge to the vocational expert’s testimony
based on non-Dictionary of Occupational Titles (DOT) data because he did not raise
this issue at his administrative hearing. See Shaibi v. Berryhill, 883 F.3d 1102, 1109–
10 (9th Cir. 2017). Instead, Talley raised it for the first time to the Appeals Council
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by offering competing vocational evidence. Claimants represented by attorneys must
raise “all issues and evidence” to the ALJ to avoid forfeiture. Meanel v. Apfel, 172
F.3d 1111, 1115 (9th Cir. 1999). Talley’s counsel could have questioned the expert
about the standing or walking requirements of the identified work, but did not. See
Biestek v. Berryhill, 139 S. Ct. 1148, 1156 (2019). Accordingly, Talley forfeited this
claim on appeal. See Shaibi, 883 F.3d at 1109.
3. Even if not forfeited, Talley’s challenge to the vocational evidence on
which the vocational expert relied fails. First, the raw data that Talley submitted to
the Appeals Council without any explanation or argument offers no ground to
conclude that the vocational expert’s testimony was “so feeble[] or contradicted[]
that it would fail to clear the substantial-evidence bar.” Biestek, 139 S. Ct. at 1155–
56. Moreover, Terry forecloses this argument. See 998 F.3d at 1013 (holding that
non-DOT data “does not necessarily establish either legal error or a lack of
substantial evidence” where “a qualified vocational expert is presumptively familiar
with” disability law terms and their “attendant limitations,” and the record reflects
the expert’s “unchallenged expertise and [the expert’s] reference to the [DOT]”).
“[E]ven where the evidence of record is ‘susceptible to more than one rational
interpretation,’ we must defer to the Commissioner's interpretation of the evidence.”
Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039–40 (9th Cir. 1995)).
Accordingly, we conclude that substantial evidence supports the ALJ’s finding at
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step five of the disability evaluation process.
4. Finally, the ALJ gave “specific, clear and convincing reasons” for
partially discounting Talley’s testimony about his limitations. Molina v. Astrue, 674
F.3d 1104, 1112 (9th Cir. 2012), superseded by regulation on other grounds (citation
omitted). For example, the ALJ cited conflicts between Talley’s allegations of his
disabling physical and mental impairments and the objective medical evidence. See
Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008). The
ALJ also noted that Talley reported that his mental-health symptoms improved with
medication. See Wellington v. Berryhill, 878 F.3d 867, 876 (9th Cir. 2017). Finally,
the ALJ noted inconsistencies between Talley’s allegations of disabling physical and
mental symptoms and his daily activities. See Molina, 674 F.3d at 1112–13.
AFFIRMED.
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