Richard Norton v. Michael Astrue

FILED
NOT FOR PUBLICATION MAR 30 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
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, Comissioner 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.