NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 23 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL A. NAULT, No. 13-15813
Plaintiff - Appellant, D.C. No. 1:12-cv-00175-HG-KSC
v.
MEMORANDUM*
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Hawaii
Helen W. Gillmor, Senior District Judge, Presiding
Submitted February 17, 2015**
Honolulu Hawaii
Before: TASHIMA, N.R. SMITH, and FRIEDLAND, Circuit Judges.
Daniel Nault appeals the district court’s judgment affirming the Social
Security Commissioner’s denial of his application for disability insurance benefits.
We review the district court’s decision de novo, Molina v. Astrue, 674 F.3d 1104,
*
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).
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1110 (9th Cir. 2012), and we affirm.1
The Administrative Law Judge (“ALJ”) did not err in rejecting testimony of
Nault and his wife regarding the severity of Nault’s impairments. The ALJ gave
specific, clear, and convincing reasons for the rejection of the Naults’ testimony
that Nault was completely disabled. See id. at 1112. The ALJ fairly recounted the
testimony regarding the alleged severity of Nault’s disabilities and contrasted it to
medical records showing that Nault led “an active life with surfing” and
experienced physical symptoms that were “intermittent and positional.”
Nault is mistaken that the ALJ failed to perform a residual functional
capacity assessment or account for Nault’s need to shift positions while seated.
The ALJ articulated his residual functional capacity assessment over the course of
three single-spaced pages. The ALJ acknowledged Nault’s need to switch
positions when he stated that Nault “was able to manage his symptoms by
1
The Commissioner has moved to suspend the briefing schedule and to strike
Nault’s opening brief and excerpts of record. The court previously declined to
suspend the briefing schedule and briefing was completed. We now grant in part
and deny in part the remainder of the motion. Because this is a Social Security
review case, the record on appeal is limited to the certified administrative record.
See Brewes v. Comm’r of Soc. Sec., 682 F.3d 1157, 1161 (9th Cir. 2012).
Nonetheless, Nault included in his excerpts of record 850 pages of medical records
from Kaiser Permanente which are not part of the administrative record. Thus,
these records violate Fed. R. App. 10(a) and are ordered stricken. The
Commissioner’s motion also seeks to have the opening brief stricken. The court
views this remedy as unnecessary because it has ignored any reference to the
stricken records. Therefore, this portion of the motion is denied.
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changing position as needed.”
The ALJ did not err in its consideration of Nault’s Veterans Administration
(“VA”) disability rating. The ALJ acknowledged that Nault had a forty percent
VA disability rating through the date last insured and accurately noted that the
document reflecting that rating did not provide medical information regarding how
it was determined. In light of that, the ALJ appropriately turned to an analysis of
Nault’s VA medical records, which he evaluated thoroughly, and which did not
indicate that Nault was completely disabled.
Even assuming that the ALJ was required to consider Nault’s workers’
compensation settlement agreement under Social Security Ruling 06-03p, we
conclude that any error in failing to consider the settlement agreement was
harmless. See Molina, 674 F.3d at 1115 (“We have long recognized that harmless
error principles apply in the Social Security Act context.”). Several health
professionals who evaluated Nault in connection with his workers’ compensation
claim noted that he was ready, willing, and able to work, and the ALJ’s
nondisability determination was thoroughly supported by medical evidence.
The ALJ did not err in refraining from employing the help of a vocational
expert and instead relying on the medical-vocational guidelines to find Nault
capable of working. “[A] vocational expert is required only when there are
significant and sufficiently severe non-exertional limitations not accounted for in
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the grid.” Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007) (internal
quotation marks omitted). Contrary to Nault’s assertion, the ALJ’s residual
functional capacity assessment did not include a finding that Nault had a severe
non-exertional limitation requiring him to alternate between sitting and standing.
Consequently, a vocational expert was not necessary.
Finally, we need not reach Nault’s contention that the district court erred
regarding the scope of the record. By failing to argue in his opening brief in the
district court that the record should be supplemented, Nault waived any such
contention. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (arguments
not raised by a party in its opening brief are waived).
AFFIRMED.
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