FILED
NOT FOR PUBLICATION MAY 22 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LARRY TRUNDLE, No. 11-15281
Plaintiff - Appellant, D.C. No. 1:09-cv-02058-JLT
v.
MEMORANDUM *
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Jennifer L. Thurston, Magistrate Judge, Presiding
Submitted May 15, 2012 **
San Francisco, California
Before: THOMAS, McKEOWN, and W. FLETCHER, Circuit Judges.
Larry Trundle appeals the district court’s judgment affirming the
Commissioner’s denial of Trundle’s application for social security benefits.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
Upon the parties’ mutual agreement, this case was submitted for
decision without oral argument. See Fed. R. App. P. 34(f).
Trundle alleges disability due to back pain. At Step Five, the Administrative Law
Judge (“ALJ”) found Trundle could perform jobs that exist in significant numbers
in the national economy. On appeal, Trundle makes two core arguments: 1) the
ALJ improperly rejected the opinion of Trundle’s examining physician, Dr.
Berrien; and 2) substantial evidence does not support the ALJ’s Step Five decision
because the ALJ improperly relied on testimony of past work that was more than
15 years old and the ALJ used the medium medical-vocational rules as a
framework. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
The ALJ provided “specific, legitimate reasons” supported by “substantial
evidence,” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (citation and
internal quotation marks omitted), for her decision to credit Dr. Madireddi over Dr.
Berrien. Based on the totality of the evidence in the record, “[t]he ALJ may
disregard the treating physician’s opinion whether or not that opinion is
contradicted.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). Both
doctors examined Trundle only once. Dr. Berrien’s examination, however,
occurred more than seven years before Trundle filed the Social Security claim at
issue here, and was based on unreliable subjective complaints voiced by Trundle.
In addition, Dr. Berrien was an examining physician, not a treating physician, and
his findings were contradicted by Dr. Madireddi’s more recent and more reliable
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findings. The decision to credit Dr. Madireddi over Dr. Berrien was therefore
supported by substantial evidence.
Substantial evidence also supports the ALJ’s Step Five decision. Trundle is
not limited to light work; rather, he is limited to medium work with a slight
reduction in the total amount of lifting. Although the ALJ referred to Trundle’s
past work experience as a truck driver, the record is unclear as to whether that past
work experience was more than fifteen years old. Assuming, without deciding,
that the ALJ erred in referring to Trundle’s past work experience, the error was
harmless because the ALJ twice acknowledged in her opinion that Trundle’s prior
work experience was not relevant. See Batson v. Comm’r of the Soc. Sec. Admin.,
359 F.3d 1190, 1197 (9th Cir. 2004) (finding error harmless where it did not negate
the validity of the ALJ’s ultimate conclusion). Further, the regulation does not
preclude considering past work experience older than fifteen years. 20 C.F.R.
§ 404.1565(a). Rather, fifteen years is the time frame that the agency “usually
consider[s].” Id. The regulation also states that where an applicant has “acquired
skills through your past work, we consider you to have these work skills unless you
cannot use them in other skilled or semi-skilled work that you can now do.” Id.
Driving is a skill unlikely to be entirely lost with the passage of time, and Trundle
testified that he still drives. Additionally, the ALJ properly posed hypothetical
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questions to the Vocational Expert and properly based those questions on the
medical findings of Dr. Madireddi. See Tackett v. Apfel, 180 F.3d 1094, 1101 (9th
Cir. 1999) (describing the role of a Vocational Expert in a Social Security hearing).
Finally, the Vocational Expert properly accounted for Trundle’s lifting
capacity being slightly below the normal cut-off for “medium” and accordingly
discounted the number of jobs available.
Trundle’s motion to take judicial notice is denied.
AFFIRMED.
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