Matthew Goodman v. Nancy Berryhill

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 7 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MATTHEW A. GOODMAN, No. 17-35941
Plaintiff-Appellant, D.C. No. 3:17-cv-05115-BAT
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Brian Tsuchida, Magistrate Judge, Presiding
Argued and Submitted October 12, 2018
Seattle, Washington
Before: BLACK,** TALLMAN, and BEA, Circuit Judges.
Matthew Goodman appeals the district court’s order affirming the
administrative law judge’s (ALJ) decision denying Disability Insurance Benefits
and finding that Goodman was not disabled within the meaning of the Social
Security Act. We have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Susan H. Black, United States Circuit Judge for the
U.S. Court of Appeals for the Eleventh Circuit, sitting by designation.
§ 1291, and we affirm the Commissioner’s decision.
First, even assuming the ALJ erred in failing to discuss Goodman’s frequent
medical appointments in crafting Goodman’s residual functional capacity (RFC),
any such error was harmless.1 See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir.
2012) (explaining in conducting a harmless error analysis, “we look at the record
as a whole to determine whether the error alters the outcome of the case”).
Because the evidence showed Goodman could work a non-traditional work shift
(nights), any error attributable to the ALJ’s failure to discuss the effect of
Goodman’s frequent medical appointments on his ability to hold a traditional day
job was harmless.
Second, the ALJ did not err by failing adequately to explain why she
rejected the sedentary RFC rendered by a state-agency doctor, instead finding
Goodman able to work at the light exertional level. See Sousa v. Callahan, 143
F.3d 1240, 1244 (9th Cir. 1998) (“The Commissioner may reject the opinion of a
non-examining physician by reference to specific evidence in the medical record.”)
The ALJ weighed the evidence and determined a sedentary level was inconsistent
with the objective medical evidence. The ALJ’s reasons, including Goodman’s
daily activities, past work attempts, and lack of medication use constitute
1
Likewise, we reject Goodman’s contention that the ALJ’s questioning of the
Vocational Expert was deficient because it failed to include the functional
limitation that Goodman could not work consistently due to frequent medical
appointments.
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substantial evidence for rejecting the non-examining physician’s RFC.
Third, the ALJ gave multiple persuasive, specific, and valid reasons for
giving Goodman’s 100% VA disability rating only some weight. See McCartey v.
Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) (“[T]he ALJ may give less weight
to a VA disability rating if [s]he gives persuasive, specific, valid reasons for doing
so that are supported by the record.”). The ALJ considered the combined effect of
all of Goodman’s impairments on his ability to function, as required by 42 U.S.C.
§ 423(d)(2)(B), and determined Goodman’s limitations would still permit civilian
light work. The objective medical and other record evidence did not establish that
Goodman’s conditions precluded him from performing all light work during the
closed period of disability.
Fourth, contrary to Goodman’s assertion, both of Mrs. Goodman’s
statements were mentioned in the ALJ’s decision. Although the ALJ did not
explicitly state she was rejecting or discounting Mrs. Goodman’s testimony, her
discussion of Mrs. Goodman’s statements in the context of finding a mild
restriction in the activities of daily living demonstrates she found the statements
inconsistent with the evidence. See Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir.
1993) (explaining an ALJ must provide a germane reason to discount the testimony
of a lay witness). Further, Mrs. Goodman’s statements were largely duplicative of
Goodman’s own complaints, and the ALJ explicitly discounted Goodman’s
3 17-35941
testimony about symptoms because it was inconsistent with the medical evidence
and Goodman’s activities of daily living. Thus, any error by the ALJ in not
assigning weight to Mrs. Goodman’s statements is harmless.2
Finally, as to the Vocational Expert’s (VE) testimony at the hearing, the
record shows Goodman’s counsel questioned the VE regarding the basis for his job
numbers. The VE’s testimony regarding the job numbers available for “cleaner,
housekeeping” is supported by substantial evidence. The parties agree on the job
numbers for this position; they disagree only on the question of whether the
position constitutes light work. Goodman’s own VE provided no support for his
conclusion that contrary to the Dictionary of Occupational Titles (DOT) definition,
the position of “cleaner, housekeeping” entails more than light work. See Pinto v.
Massanari, 249 F.3d 840, 846 (9th Cir. 2001) (stating a court may accept a VE’s
opinion that contradicts the DOT definition only if the record contains “persuasive
evidence to support the deviation” (citation omitted)). Thus, the ALJ’s decision
that Goodman could perform the work required for the “cleaner, housekeeping”
position was supported by substantial evidence.
AFFIRMED.
2
We also find no merit to Goodman’s contention that the ALJ’s questioning of the
Vocational Expert was deficient because it failed to include functional limitations
expressed by Mrs. Goodman.
4 17-35941