Anthony James v. Kilolo Kijakazi

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 2, 2022
• Docket: 21-35586
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAY 2 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTHONY JAMES, No. 21-35586

Plaintiff-Appellant, D.C. No. 3:20-cv-05649-MLP

v. MEMORANDUM* KILOLO KIJAKAZI, Acting Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Michelle L. Peterson, Magistrate Judge, Presiding

Submitted April 15, 2022** San Francisco, California

Before: BYBEE and R. NELSON, Circuit Judges, and BOLTON,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Susan R. Bolton, United States District Judge for the District of Arizona, sitting by designation. Anthony James appeals the decision of the Commissioner of the Social

Security Administration denying his applications for disability insurance benefits

and supplemental security income for a period beginning on January 31, 2013.

Applying the five-step disability analysis, the Administrative Law Judge (ALJ)

found that James was not disabled during the relevant period, and the district court

affirmed. James appeals, arguing that the ALJ failed to adequately account for his

vision limitations in the residual function capacity (RFC) because the ALJ left out

the word “occasional” with respect to his ability to read small print.

“We review the district court’s order affirming the ALJ’s denial of social

security benefits de novo, and will disturb the denial of benefits only if the decision

contains legal error or is not supported by substantial evidence.” Ford v. Saul, 950

F.3d 1141, 1153–54 (9th Cir. 2020) (quotation marks omitted) (quoting

Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)). “Substantial evidence

means more than a mere scintilla but less than a preponderance; it is such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”

Coleman v. Saul, 979 F.3d 751, 755 (9th Cir. 2020) (quoting Andrews v. Shalala,

53 F.3d 1035, 1039 (9th Cir. 1995)). “Where evidence is susceptible to more than

one rational interpretation, it is the ALJ’s conclusion that must be upheld.” Luther

v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018) (quoting Burch v. Barnhart, 400

2 F.3d 676, 679 (9th Cir. 2005)). The ALJ’s evidentiary orders are reviewed for an

abuse of discretion. See, e.g., Smith v. Berryhill, 139 S.Ct. 1765, n. 19 (2019);

Ford, 950 F.3d at 1154 (“An ALJ’s denial of a subpoena is reviewed for abuse of

discretion.”).

James forfeited the argument that the ALJ failed to adequately account for

his vision limitations in the RFC. He failed to make a specific assignment of error

regarding this issue in his brief before the district court, and he failed to adequately

explain how the RFC erred in addressing his vision limitations. Indeed, he

mentioned his vision only twice in his district court brief. And he made no

reference to the RFC’s reference to standard-sized print.

It is a general rule that this court will not entertain arguments that were not

presented or developed before the district court. J. K. J. v. City of San Diego, 17

F.4th 1247, 1261 (9th Cir. 2021); see also Ghanim v. Colvin, 763 F.3d 1154, 1160

(9th Cir. 2014) (applying this rule in a social security case). “[N]o ‘bright line

rule’ exists to determine whether a matter has been properly raised below. ‘A

workable standard, however, is that the argument must be raised sufficiently for the

trial court to rule on it.’” Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 515

(9th Cir. 1992) (quoting In re E.R. Fegert, Inc., 887 F.2d 955, 957 (9th Cir. 1989)).

3 In the alternative, we find the ALJ’s decision was based on substantial

evidence. The Commissioner’s regulations provide a five-step process for

disability analysis. See 20 C.F.R. § 416.920. Our analysis is limited to the

RFC—completed between steps three and four—and step five in this case.

Before moving to step four, the ALJ must determine the claimant’s RFC,

which is the most a claimant can do considering his impairments and limitations.

20 C.F.R. §§ 416.920(a)(4), (e); 416.945. The ALJ determined that “the claimant .

. . must have the option for large print instructions or other job tasks that require

reading, but no work involving fine details . . . can read in normal size print that is

larger than telephone book print (like a typewriter, also described as 12pt font-

same font as the notices in the mail the claimant received directing him to the

hearing).” James contends, and the government concedes, that this RFC omits the

limitation that reading normal size print can only be “occasional.” But the error is

harmless because “it is inconsequential to the ultimate nondisability

determination.” See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)

(cleaned up).

Where an ALJ fails to include a credited limitation in the RFC, the error is

harmless if that limitation would not preclude peformance of the jobs identified in

step four or five. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir.

4 2008). While not included in the RFC, the limitation was included in the

vocational expert’s recommendation. The ALJ informed the expert that James

would be able to read short bursts of normal size print. The vocational expert

testified that James could do the job of grain-picker, merchandise marker, and

parking lot attendant—the latter two only requiring short bursts of reading normal-

sized prints. The limited reading requirements are compatible with the assessment

that James could not read normal-sized font constantly.

James also contends that there is insufficient foundation to support the

vocational expert’s conclusions because the expert could not provide sufficient

definition of “normal-sized print.” But the vocational expert was able to provide

sufficient detail by reference to the notices that James received regarding the

hearing. The ALJ made the finding that the Notice to Appear uses a 12-point font,

and he defined “standard-sized print” as “normal size print that is bigger than

telephone book print . . . also described as 12pt font.” Thus, James’s argument that

the vocational expert’s testimony was too vague to serve as the foundation for the

RFC fails on the merits.

AFFIRMED.