Becky Loop v. Carolyn Colvin , 651 F. App'x 694 ( 2016 )

FILED
NOT FOR PUBLICATION
JUN 10 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BECKY LOOP, No. 14-35261
Plaintiff - Appellant, D.C. No. 3:12-cv-01674-JE
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Submitted June 8, 2016 **
Before: PREGERSON, LEAVY, and OWENS, Circuit Judges.
Becky Loop appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of her application for disability
*
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).
insurance benefits under Title II of the Social Security Act. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
We review de novo a district court’s judgment upholding an administrative
law judge’s (“ALJ”) denial of social security benefits. Ghanim v. Colvin, 763 F.3d
1154, 1159 (9th Cir. 2014). We will reverse only if the ALJ’s decision is not
supported by substantial evidence in the record or is based on legal error. Id.
At step four of the sequential evaluation process, the ALJ found that despite
Loop’s severe impairments of degenerative disc disease, hearing loss, epicondylitis
(elbow inflammation), diabetes mellitus, and left hip bursitis, she was capable of
performing her past relevant work as a customer service representative at a call
center.
The ALJ did not err by failing to include an impaired ability to talk and hear
on the telephone in her finding regarding Loop’s residual functional capacity.
Substantial evidence, including Loop’s own testimony about the effectiveness of
her hearing aids and her reason for leaving the call center job, supported the ALJ’s
finding. See 20 C.F.R. § 404.1545(a)(1); Garrison v. Colvin, 759 F.3d 995, 1010-
11 (9th Cir. 2014).
The ALJ properly accorded little weight to the opinion of an occupational
therapist. See 20 C.F.R. §§ 404.1513(a) & (d)(1); Britton v. Colvin, 787 F.3d
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1011, 1013 (9th Cir. 2015) (per curiam) (holding that ALJ may discount testimony
from “other sources” by giving reasons germane to that witness). The ALJ
provided reasons germane to this therapist by explaining that her assessment did
not reflect Loop’s capacities while on medication, and it predated by almost three
years the end of Loop’s substantial gainful employment as a customer service
representative and her alleged disability onset date. See Carmickle v. Comm’r, 533
F.3d 1155, 1165 (9th Cir. 2008) (holding that medical opinions predating alleged
onset of disability are of limited relevance); Warre v. Comm’r of Soc. Sec. Admin.,
439 F.3d 1001, 1006 (9th Cir. 2006) (stating that impairments that can be
controlled effectively with medication are not disabling).
The ALJ did not err in finding unconvincing Loop’s testimony that due to
her chronic back and hip pain, she was incapable of any work activity. The ALJ
properly followed the two-step credibility analysis and provided specific, clear and
convincing reasons, supported by substantial evidence, for her credibility finding.
See Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014).
The ALJ properly relied in part on her observations of Loop during the hearing and
properly considered Loop’s daily activities and hobbies. See Molina v. Astrue, 674
F.3d 1104, 1112-13 (9th Cir. 2012). The ALJ also properly considered Loop’s
reason for leaving her call center job. See Bruton v. Massanari, 268 F.3d 824, 828
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(9th Cir. 2001). In light of these other valid reasons, any error in the ALJ’s
reasoning regarding Loop’s medical transcription training was harmless. See
Molina, 674 F.3d at 1122.
Any error in the ALJ’s assessment of a lay witness also was harmless. See
id.
Finally, substantial evidence supported the ALJ’s finding, at step four, that
Loop was capable of performing her past relevant work as a call center customer
service representative. See Ghanim, 763 F.3d at 1166. Loop contends that this
finding was in error because the vocational expert testified that she could perform
the call center work with the “accommodation” of a sit/stand option, but the
possibility of reasonable accommodation may not be taken into consideration in
the determination whether a Social Security claimant is disabled. See Cleveland v.
Policy Mgmt. Sys. Corp., 526 U.S. 795, 803 (1999) (contrasting Social Security
disability claims and claims under Americans with Disabilities Act). Loop’s
contention lacks merit because the gist of the vocational expert’s testimony was
that allowing a sit/stand option is commonplace in call center workplaces, and this
is how the call center job is generally performed in the national economy. See 20
C.F.R. § 404.1560(b)(2) (providing that vocational expert may testify as to how
claimant’s past relevant work is “generally performed in the national economy”);
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Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (holding that ALJ may
take administrative notice of any reliable job information, including information
provided by vocational expert); see also Jones v. Apfel, 174 F.3d 692, 693-94 (5th
Cir. 1999) (holding that ALJ properly relied on vocational expert’s testimony
indicating that allowing for employee to alter between sitting and standing is
prevalent accommodation in workplace).
AFFIRMED.
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