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NOT FOR PUBLICATION DEC 23 2009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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