Michael Moreno v. Michael Astrue

FILED
NOT FOR PUBLICATION JUL 20 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL MORENO, No. 10-35864
Plaintiff - Appellant, D.C. No. 2:09-cv-03072-JPH
v.
MEMORANDUM*
MICHAEL J. ASTRUE, Commissioner,
Social Security Administration,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
James P. Hutton, Magistrate Judge, Presiding
Submitted July 15, 2011**
Seattle, Washington
Before: GILMAN ***, CLIFTON, and N.R. SMITH, Circuit Judges.
*
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 Ronald Lee Gilman, Senior Circuit Judge for the Sixth
Circuit, sitting by designation.
Michael Moreno appeals from the district court’s judgment that affirmed the
final decision by the Commissioner denying his application for supplemental
security income under Title II of the Social Security Act. We have jurisdiction
pursuant to 28 U.S.C. § 1291. We review de novo the district court’s judgment
upholding the denial of benefits, Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d
1219, 1222 (9th Cir. 2009), and we affirm the district court.
The ALJ did not err in concluding that Moreno’s impairment did not meet
or equal an impairment in Listing 1.02A, which describes a claimant as disabled if
he has an “inability to ambulate effectively,” which is defined as “an extreme
limitation of the ability to walk.” 20 C.F.R. Part 404, Subpart P, Appendix A 1,
Listings 1.02A, 1.00B.2.b(1). An example of ineffective ambulation is “the
inability to walk a block at a reasonable pace on rough or uneven surfaces.” 20
C.F.R. Part 404, Subpart P, Appendix A 1, Listing 1.00B.2.b(2). Moreno argues
that because the ALJ, in his assessment of Moreno’s residual functional capacity
(“RFC”), limited Moreno to walking on even terrain, the ALJ erred when he
concluded that Moreno could ambulate effectively and therefore failed to satisfy
the criteria in Listing 1.02A. However, the RFC did not state that Moreno was
incapable of walking on uneven surfaces, only that he should avoid doing so in his
employment. None of Moreno’s examining or treating physicians indicated that
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Moreno could not walk on uneven terrain, or that he was unable to ambulate
effectively. Instead, his physicians described him as being able to walk and stand
for up to six hours a day.
The ALJ’s determination that Moreno was capable of performing sedentary
work with additional limitations was supported by substantial evidence. The ALJ
did not include an option to recline and elevate the leg and foot because the only
evidence of such a limitation came from Moreno, whom the ALJ found to be less
than credible, and Dr. Francis, whose testimony the ALJ properly discredited as
inconsistent with the assessments of Moreno’s examining and treating doctors. See
Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); Lester v. Chater, 81
F.2d 821, 832 (9th Cir. 1995).
AFFIRMED.
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