Carie Mix v. Andrew Saul

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 15, 2021
• Docket: 18-35968
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 15 2021 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS

CARIE MIX, No. 18-35968 Plaintiff-Appellant, D.C. No. 3:17-cv-05739-JRC v. MEMORANDUM* ANDREW M. SAUL, Commissioner of Social Security, Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington J. Richard Creatura, Magistrate Judge, Presiding Submitted September 2, 2020** Seattle, Washington

Before: BYBEE and COLLINS, Circuit Judges, and STEARNS,*** District Judge.

Carie Mix appeals from the district court’s order affirming the decision of

the Commissioner of Social Security denying her claim for disability insurance

benefits under the Social Security Act. Mix contends that the Administrative Law

Judge (“ALJ”) should have found that she had only the residual functional capacity

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. See FED. R. APP. P. 34(a)(2)(C). *** The Honorable Richard G. Stearns, United States District Judge for the District of Massachusetts, sitting by designation. to perform sedentary work and that the ALJ erred by instead concluding that she

was capable of light work with additional limitations. We review the district

court’s decision de novo and the agency’s decision for substantial evidence.

Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003). We affirm.

1. Mix argues that, in light of the ALJ’s finding that Mix could not perform

work that “require[s] walking or standing more than two hours total in a workday,”

the ALJ should have found that Mix was categorically limited to sedentary work.

Specifically, Mix notes that the agency has stated that the “major difference

between sedentary and light work is that most light jobs—particularly those at the

unskilled level of complexity—require a person to be standing or walking most of

the workday.” See Soc. Sec. Ruling (“SSR”) No. 83-14, 1983 WL 31254, at *4

(emphasis added). Because “two hours total” of standing or walking do not

constitute “most” of an eight-hour workday, see Armani v. Northwestern Mut. Life

Ins. Co., 840 F.3d 1159, 1163 (9th Cir. 2016), Mix argues that her two-hours-per-

day limitation on walking and standing means that she is unable to perform most

light jobs and that the ALJ therefore should have found that she was limited to

sedentary work. And that would mean that, under the applicable rule in the

Medical-Vocational Guidelines (“Grids”), Mix would be deemed disabled. We

think Mix overreads the comment in SSR 83-14.

The applicable regulation states that “[l]ight work involves lifting no more

2 than 20 pounds at a time with frequent lifting or carrying of objects weighing up to

10 pounds,” and that such a job is light work either (1) “when it requires a good

deal of walking or standing,” or (2) “when it involves sitting most of the time with

some pushing and pulling of arm or leg controls.” 20 C.F.R. § 404.1567(b). Mix

is correct that, because she cannot stand or walk for more than two hours per day,

she cannot be “considered capable of performing a full or wide range of light

work.” Id. (emphasis added). But Mix’s standing and walking limitations do not

prevent her from performing jobs in the regulation’s second category of light work

(viz., work that involves “sitting most of the time”), and under the ALJ’s findings,

Mix could also perform appropriate jobs in the first category that involve less than

two hours of standing and walking. She therefore could perform some subset of

light work, and the question then was whether that subset was so significantly

reduced that it “‘indicate[d] little more than the occupational base’” for the lower

level of sedentary work. See Moore v. Apfel, 216 F.3d 864, 870 (9th Cir. 2000)

(citation omitted). As we recognized in Moore, this question of where a claimant

falls between such categories is one that we review only for substantial evidence,

and the ALJ’s determination must be upheld if it is reasonable. Id. at 871.

Here, the ALJ reasonably concluded that Mix was not essentially limited to

sedentary work, and that she instead fell “somewhere in the middle in terms of the

regulatory criteria for exertional ranges of work.” See id. at 870 (citation and

3 internal quotation marks omitted). He therefore properly consulted a vocational

expert in assessing whether Mix was disabled. See id. Moreover, the ALJ

reasonably determined that, in light of the vocational expert’s conclusions, there

were a significant number of “light work” jobs in the economy that Mix could

perform, and the ALJ therefore properly concluded that Mix’s limitations did not

“erode the unskilled light occupational base” down to the occupational base for

sedentary work. See Thomas v. Barnhart, 278 F.3d 947, 954, 960 (9th Cir. 2002).

2. Mix nonetheless contends that the vocational expert introduced a second

exertional limitation in her analysis, viz., that Mix needed to have the ability to

change between sitting and standing at will. Mix argues that the ALJ should have

incorporated this limitation into his determination of Mix’s residual function

capacity and that, together with Mix’s limitation to two hours of standing and

walking, this limitation would have restricted Mix to sedentary work. While this

certainly presents a closer question, we still cannot say that the ALJ acted

unreasonably in concluding that Mix was not limited to sedentary work and that

she instead fell between two Grid rules. The substantial volume of jobs identified

by the vocational expert reasonably support the ALJ’s view that, even if Mix

required flexibility in “changing of position between sitting and standing every

forty-five minutes,” Mix still fell between the relevant Grid rules for light work

and sedentary work. Because the vocational expert identified a substantial number

4 of light-work jobs that Mix could perform even with the additional limitation, we

reject Mix’s contention that this is a situation where “[t]he testimony of the

vocational expert belied the ALJ’s finding.” Distasio v. Shalala, 47 F.3d 348, 350

(9th Cir. 1995).

In light of the foregoing, we conclude that the ALJ properly consulted a

vocational expert and that the ALJ reasonably concluded that Mix was not

disabled.

AFFIRMED.