Anita Rushing v. Commissioner Social Security A

FILED
NOT FOR PUBLICATION DEC 23 2009
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ANITA F. RUSHING, No. 08-36001
Plaintiff - Appellant, D.C. No. 3:07-cv-01124-PK
v.
MICHAEL J. ASTRUE, Commissioner of MEMORANDUM *
the Social Security Administration,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding
Argued and Submitted December 10, 2009
Portland, Oregon
Before: FARRIS, D.W. NELSON, and BERZON, Circuit Judges.
Anita F. Rushing appeals the district court’s order affirming the
Commissioner’s decision denying Rushing Social Security Disability insurance
benefits. Because the Administrative Law Judge’s (“ALJ”) decision to discredit
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
certain evidence presented by Rushing is supported by substantial evidence and
because the ALJ committed only harmless error at step five, we affirm.
“[W]e review de novo the district court’s order upholding a decision of the
Commissioner denying benefits to an applicant. The Commissioner’s decision must
be affirmed by us if supported by substantial evidence, and if the Commissioner
applied the correct legal standards.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d
1190, 1193 (9th Cir. 2004) (internal citations omitted).
We first hold that the ALJ’s decision to discredit certain testimony and
statements is supported by substantial evidence. The ALJ’s decision to discredit
portions of Dr. Weeks’s 2003 Medical Source Statement is supported by the specific,
legitimate reason that the Statement is inconsistent with medical opinions made closer
in time to Rushing’s last date insured by specialists Dr. Mays and Dr. Hubbard and by
Dr. Weeks’s herself. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).
The ALJ’s decision to discredit portions of Rushing’s testimony and statements is
supported by substantial evidence in the record because Rushing’s self-reported
limitations contradict Rushing’s mother’s January 2001 report. Also, the medical
opinions offered by her doctors are inconsistent with Rushing’s testimony regarding
her inability to engage in ordinary physical activity, such as walking, without
discomfort. Finally, the ALJ’s decision to discredit portions of Rushing’s husband’s
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2003 testimony is supported by substantial evidence in the record because Mr.
Rushing testified primarily as to Rushing’s capabilities after her last date insured and
because Mr. Rushing’s testimony contradicted various medical evidence and
Rushing’s mother’s report.
Second, we hold that the ALJ’s errors at step five were harmless. See Burch
v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Though the ALJ erred when
crafting hypothetical questions for the vocational expert, that error was harmless
because the vocational expert testified that Rushing can perform the job of
surveillance-system monitor. The Commissioner properly took administrative
notice that this occupation does not require frequent use of the hands or wrists. See
20 C.F.R. § 404.1566(d); S ELECTED C HARACTERISTICS OF O CCUPATIONS D EFINED
IN THE R EVISED D ICTIONARY OF O CCUPATIONAL T ITLES 04.02.03. We also hold
that surveillance-system monitor jobs exist in significant numbers in the national
economy. See Moncada v. Chater, 60 F.3d 521, 524 (9th Cir. 1995); Barker v.
Sec. of Health & Human Servs., 882 F.2d 1474, 1478-79 (9th Cir. 1989); Meissl v.
Barnhart, 403 F. Supp. 2d 981, 982 n.1 (C.D. Cal. 2005). The ALJ’s failure to ask
the vocational expert whether his testimony was consistent with the D ICTIONARY
OF O CCUPATIONAL T ITLES was likewise harmless because Rushing does not allege
that the vocational expert’s testimony was actually inconsistent with the
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D ICTIONARY OF O CCUPATIONAL T ITLES. See Massachi v. Astrue, 486 F.3d 1149,
1153-54 (9th Cir. 2007).
AFFIRMED.
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