FILED
NOT FOR PUBLICATION
FEB 17 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARTIN RINCON, No. 14-55331
Plaintiff - Appellant, D.C. No. 2:12-cv-10583-PJW
v. MEMORANDUM*
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Patrick J. Walsh, Magistrate Judge, Presiding
Argued and Submitted February 1, 2016
Pasadena, California
Before: PAEZ and M. SMITH, Circuit Judges, and SILVER, Senior District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Roslyn O. Silver, Senior District Judge for the U.S.
District Court for the District of Arizona, sitting by designation.
Martin Rincon appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of his application for supplemental
security income under Title XVI of the Social Security Act. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo, Molina v. Astrue, 674 F.3d 1104,
1110 (9th Cir. 2012), and we affirm.
Rincon first argues the Administrative Law Judge (“ALJ”) erred in rejecting
the opinion of Dr. Ross, Rincon’s treating physician. The ALJ relied on the
opinion of an examining physician and other evidence in the record in concluding
Dr. Ross’s opinion should be discounted. By doing so, the ALJ provided the
requisite “specific, legitimate reasons based on substantial evidence in the record”
for rejecting Dr. Ross’s opinion. Id. at 1111. Any conflicts between Dr. Ross’s
opinion, the opinion of the examining physician, and the other evidence were for
the ALJ to resolve. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995).
Rincon next argues the ALJ erred in rejecting the opinion of an examining
physician, Dr. Ritvo, regarding Rincon’s mental health. The ALJ relied on the
opinion of a different examining physician, the testimony of a mental health expert
at the hearing, and other evidence in the record in reaching her conclusions
regarding Rincon’s mental health. The ALJ did not err. Molina, 674 F.3d at 1111.
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Rincon also argues the ALJ erred in accepting the Vocational Expert’s
(“VE”) testimony. According to Rincon, the VE’s testimony conflicted with
agency policy. That is not accurate. The agency policy does not require that
limitations on the ability to stoop and use of a cane result in a finding of disability.
See SSR 96-9p, 61 Fed. Reg. 34478-01, 34482 (July 2, 1996) (“[R]estriction to
occasional stooping should, by itself, only minimally erode the unskilled
occupational base of sedentary work.”); id. (observing that “an individual who uses
a medically required hand-held assistive device” may be able to perform sedentary
unskilled occupations). The VE took into account Rincon’s limitations when
determining the type of jobs Rincon could still perform.
Finally, Rincon argues the ALJ erred by relying on the VE’s testimony
regarding the number of available jobs. At the hearing before the ALJ, Rincon’s
counsel did not challenge the VE’s expertise. “A VE’s recognized expertise
provides the necessary foundation for his or her testimony.” Bayliss v. Barnhart,
427 F.3d 1211, 1218 (9th Cir. 2005). Thus, there was an adequate basis for the
VE’s testimony regarding the number of jobs available. Moreover, any error
regarding the number of available jobs of a particular type was harmless in that
Rincon did not challenge the VE’s testimony regarding the number of other types
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of jobs available. Molina, 674 F.3d at 1111 (“[W]e may not reverse an ALJ’s
decision on account of an error that is harmless.”).
AFFIRMED.
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