FILED
NOT FOR PUBLICATION SEP 08 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DENISE GALLO, No. 10-15851
Plaintiff - Appellant, DC No. 3:07 cv-01561 MEJ
v.
MEMORANDUM *
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Maria-Elena James, Magistrate Judge, Presiding
Submitted July 21, 2011 **
San Francisco, California
Before: TASHIMA and RAWLINSON, Circuit Judges, and RAKOFF, Senior
District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
***
The Honorable Jed S. Rakoff, Senior United States District Judge for
the Southern District of New York, sitting by designation.
Denise Gallo appeals from the district court’s judgment affirming the Social
Security Commissioner’s denial of her application for disability insurance benefits
and supplemental security income under Titles II and XVI of the Social Security
Act. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. Gallo contends that the ALJ erroneously rejected three categories of
evidence when determining her exertional limitations: (1) Gallo’s testimony
concerning such severe symptoms as intermittent, excruciating pain in her back
and an inability to walk for more than ten minutes; (2) corroborating lay witness
statements by Gallo’s son; and (3) two physician reports.
We conclude that the ALJ properly rejected each category of evidence.
Gallo’s testimony about the severity of her symptoms conflicted with the objective
medical evidence – her physicians recommended only conservative treatment
because they found that she suffered only “mild degenerative changes”– and also
with her own statements about her college course work and the extent of her other
daily activities. This contradictory evidence adequately supports the ALJ’s
decision to discount Gallo’s testimony. See Parra v. Astrue, 481 F.3d 742, 750-51
(9th Cir. 2007); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Thomas
v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). The evidence of daily activities
also conflicts with, and supports the ALJ’s partial rejection of, the lay witness
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statements. See Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 694 (9th
Cir. 2009).
The two physician reports on which Gallo relies do not conflict in any
material way with the ALJ’s assessment of Gallo’s Residual Functional Capacity
(“RFC”). The first, an October 2005 report by Dr. Lee, states that Gallo’s
“[f]orward [neck] flexion is limited secondary to discomfort” and also that her
neck “[e]xtension is limited secondary to discomfort.” Although Gallo would read
this language to preclude even partial tilting or extension of the neck, the ALJ’s
inference that it, instead, precludes only “full flexion,” along with neck rotation
greater than 45 degrees, is reasonable. See Tommasetti v. Astrue, 533 F.3d 1035,
1040 (9th Cir 2008) (holding that the court may not disturb an ALJ’s inferences
that flow logically from the evidence and are not “unreasonable”). The second
report, an April 2005 physical examination by the Disability Determination
Services, notes that Gallo’s ability to reach overhead is “limited to occasional.”
The very same report, however, found Gallo capable of performing “light” work.
In contrast, the ALJ concluded that Gallo was limited to “sedentary” work. We
find no prejudicial error in the ALJ’s failure to impose an overhead reaching
limitation that, according to the very report on which Gallo relies, would not even
have prevented her from doing work more strenuous than the sedentary work
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contemplated in the RFC. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174
(9th Cir. 2008) (“[T]o the extent the ALJ’s RFC finding erroneously omitted
[certain] postural limitations (only occasional balancing, stooping, and climbing of
ramps and stairs), any error was harmless since sedentary jobs require infrequent
stooping, balancing, crouching, or climbing.”). We note that Gallo offers no
argument that an “overhead reaching” limitation would have disqualified her from
the jobs the ALJ ultimately found she could perform.
2. We reject Gallo’s contention that the ALJ ignored her mental
limitations. The RFC properly accounts for those limitations by precluding work
involving “detailed instructions” and stating that Gallo’s “ability to maintain
concentration is in the low average range.” Though some of the psychological
evidence suggested Gallo suffered more severe limitations, such as an inability to
complete a normal workweek or to perform anything beyond “simple 1 + 2 step
tasks,” the ALJ properly rejected that evidence in favor of Dr. Kastl’s report, which
was most consistent with Gallo’s ability to complete 12 college credits with a 4.0
grade point average. See, e.g., Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d
1155, 1164 (9th Cir. 2008).
3. We also reject Gallo’s challenges to the vocational expert’s (“VE”)
testimony upon which the ALJ relied at Step 5. Although the description in the
4
Dictionary of Occupational Titles (“DOT”) of the “Addresser” job contains a
seemingly antiquated reference to typewriters, the ALJ was nonetheless entitled to
rely on the VE’s testimony that the Addresser job exists in significant numbers in
the national economy. See, e.g., Widmark v. Barnhart, 454 F.3d 1063, 1069 (9th
Cir. 2006); Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999). VE testimony
may become unreliable on account of a conflict with the DOT, see Massachi v.
Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 2007), but not on account of its
compliance with the DOT. See Carmickle, 533 F.3d at 1166 (“The DOT is the best
source for how a job is generally performed.” (internal quotation marks omitted)).
Because the ALJ satisfied his burden at Step 5 by relying on the VE’s
testimony about the Addresser job, any error that the ALJ may have committed by
relying on the testimony about the “credit checker” job was harmless. See id. at
1162.
AFFIRMED.
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