Stephen Turner v. Nancy Berryhill

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 28 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

STEPHEN BRIAN TURNER, No. 15-16265

Plaintiff-Appellant, D.C. No. 3:14-cv-04525-MEJ

v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of California
Maria-Elena James, Magistrate Judge, Presiding

Argued and Submitted May 18, 2017
San Francisco, California

Before: BERZON and MURGUIA, Circuit Judges, and MCCALLA,** District
Judge.

Stephen Turner appeals the district court’s decision affirming the

Commissioner of Social Security’s denial of his application for disability insurance

benefits and supplemental security income under Titles II and XVI of the Social

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jon P. McCalla, United States District Judge for the
Western District of Tennessee, sitting by designation.
Security Act. The Administrative Law Judge (“ALJ”) concluded that Turner had

the severe impairments of narcissistic personality disorder and antisocial

personality disorder. The ALJ then determined that Turner retained the residual

functional capacity (“RFC”) to perform “a full range of work at all exertional

levels but [] limited to simple repetitive tasks with occasional public contact.” The

ALJ found that Turner was unable to perform any past relevant work, but could

work as a hand packager, janitor, or final inspector of electrical equipment.

We review de novo the district court’s order affirming the ALJ’s denial of

social security benefits. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir.

2007). The ALJ’s decision may be reversed “only if it is not supported by

substantial evidence or is based on legal error.” Id. (quoting Robbins v. Soc. Sec.

Admin., 466 F.3d 880, 882 (9th Cir. 2006)). We affirm.

1. “[W]hen claimants are represented by counsel, they must raise all issues

and evidence at their administrative hearings in order to preserve them on appeal.”

Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999). Similarly, when an issue is

not raised before the district court, it is waived on appeal. Sandgathe v. Chater,

108 F.3d 978, 980 (9th Cir. 1997) (per curiam). There are three exceptions to this

rule of waiver: (1) where “review is necessary to prevent a miscarriage of justice or

to preserve the integrity of the judicial process,” (2) where “a new issue arises

while appeal is pending because of a change in the law,” and (3) where “the issue

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presented is purely one of law and either does not depend on the factual record

developed below, or the pertinent record has been fully developed.” Greger v.

Barnhart, 464 F.3d 968, 973 (9th Cir. 2006) (quoting Bolker v. C.I.R., 760 F.2d

1039, 1042 (9th Cir. 1985)).

Because he did not present them to the ALJ or district court and none of the

waiver exceptions apply, Turner waived two issues raised on appeal: whether the

ALJ erred by (1) failing to evaluate whether the combined effects of Turner’s

impairments equaled Listing 12.081 and (2) failing to account for his exertional

impairments in determining Turner’s RFC. We may consider the remainder of the

issues that Turner failed to raise before the district court because the pertinent

factual record has been fully developed, so the issue is purely one of law.

2. The ALJ’s opinion concludes that Turner’s mental impairments did not

meet or medically equal the criteria of Listing 12.07 (Somatoform Disorders),

rather than Listing 12.08 (Personality Disorders), an apparent typographical error.

Any error, however, was harmless, as the ALJ determined that Turner failed to

meet the requirements of Paragraph B of Listing 12.07, which are identical to the

requirements of Paragraph B of Listing 12.08, and substantial evidence supports

1
Although Turner has stated throughout these proceedings that his impairments
“meet or equal” a listed impairment, he did not offer a theory, based on medical
evidence, as to how the combined effects of his impairments equaled Listing 12.08.
See Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001).

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the ALJ’s conclusion that Turner did not meet those requirements. Compare 20

C.F.R. pt. 404, subpt. P, app. 1, § 12.07 with id. § 12.08.

3. Substantial evidence supports the ALJ’s determination of Turner’s RFC.

The RFC was consistent with the opinion issued by State reviewing psychologist

Dr. Heather Barrons, the only medical opinion in the record that addressed

Turner’s workplace limitations. Though the ALJ failed to mention Dr. Barrons’

opinion in his decision, any error was harmless as the ALJ’s RFC finding was

consistent with her opinion and not contradicted by the opinion of any treating or

examining physician. Cf. Marsh v. Colvin, 792 F.3d 1170, 1172-73 (9th Cir. 2015)

(holding that the ALJ erred by failing to mention the contrary opinion of a treating

physician); Reddick v. Chater, 157 F.3d 715, 725-27 (9th Cir. 1998) (holding that

the ALJ erred by rejecting a treating physician’s opinion in favor of opinions

issued by non-treating doctors without providing a sufficient rationale).

4. The ALJ also did not err in the hypothetical questions posed to the

vocational expert. An RFC determination limiting a claimant to “simple, repetitive

tasks” adequately captures limitations in concentration, persistence, or pace where

the determination is consistent with the restrictions identified in the medical

evidence. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008).

As the RFC determination was consistent with Dr. Barrons’ opinion, the ALJ did

not err in posing hypothetical questions to the vocational expert regarding a

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claimant with an RFC of “no physical limitations but [] limited to performing only

simple, routine, or repetitive tasks with occasional public contact,” without

separately mentioning Turner’s moderate difficulties in concentration, persistence,

or pace.

5. The ALJ also did not err in accepting the vocational expert’s testimony

that Turner could perform jobs with Level 2 reasoning. The RFC determination

limiting Turner to “simple, repetitive tasks,” which adequately encompasses

Turner’s moderate difficulties in concentration, persistence, or pace, is compatible

with jobs requiring Level 2 reasoning. See Dictionary of Occupational Titles, app.

C, § III (4th ed. 1991) (defining jobs with Level 2 reasoning as requiring the

employee to “carry out detailed but uninvolved written or oral instructions” and

“[d]eal with problems involving a few concrete variables in or from standardized

situations”); compare Zavalin v. Colvin, 778 F.3d 842, 846-47 (9th Cir. 2015)

(holding that there was a conflict between an RFC of “simple, routine, or repetitive

work” and Level 3 reasoning).

6. The ALJ erred by failing to set forth clear and convincing reasons for his

conclusion that Turner’s testimony regarding the severity of his symptoms “was

not entirely credible.” See Greger, 464 F.3d at 972. This mistake, however, was

harmless, because, as the ALJ noted, even fully crediting Turner’s testimony, his

statements did not contradict the ALJ’s RFC determination.

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AFFIRMED.