Dennis Pigula v. Nancy Berryhill

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 26, 2018
• Docket: 16-16845
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 26 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DENNIS KEITH PIGULA, No. 16-16845

Plaintiff-Appellant, D.C. No. 5:16-cv-01190-NC

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

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Nathanael M. Cousins, Magistrate Judge, Presiding

Submitted March 22, 2018**

Before: FARRIS, CANBY, and LEAVY, Circuit Judges.

Dennis Keith Pigula appeals pro se from the district court’s decision

affirming the Commissioner of Social Security’s denial of his application for

disability insurance benefits under Title II of the Social Security Act. We have

* 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). jurisdiction under 28 U.S.C. § 1291. We review the district court’s decision de

novo, Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015), and we affirm.

The administrative law judge (“ALJ”) did not err in according “less weight”

to the contradicted opinions of two treating physicians because he provided several

specific and legitimate reasons, supported by substantial evidence, for his

assessment. See Trevizo v. Berryhill, 871F.3d 664, 675 (9th Cir. 2017). The ALJ

properly relied on the contradiction between the treating physicians’ assessment of

Pigula’s physical limitations and the objective medical evidence, including

pulmonary function test results and x-rays, see id. (referring to supportability and

consistency with the record); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d

1190, 1195 (9th Cir. 2004) (holding that ALJ properly discounted treating

physician’s opinion that was not supported by objective medical evidence); a

normal range of motion found on physical examination, See Batson, 359 F.3d at

1195; the short duration of one doctor’s treatment relationship with Pigula, see

Trevizo, 871 F.3d at 675; a plastic surgery specialist’s differing opinion regarding

hand limitations, see id.; and the limited time period addressed by the two treating

physicians, see Batson, 359 F.3d at 1194-95 (holding that claimant bears burden of

proving his disability).

At step five of the sequential analysis, the ALJ did not err in finding that

Pigula could perform jobs existing in significant numbers in the national economy.

2 See Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006) (explaining

Commissioner’s burden of proof at step five). This finding did not contradict the

ALJ’s reliance, at step four, on the vocational expert’s testimony that Pigula could

not perform his past relevant work. See id. (addressing claimant’s burden at step

four). Any error in the ALJ’s failure to ask the vocational expert about other jobs

that Pigula could perform, despite a mild non-exertional impairment with respect

to his ability to perform complex tasks, was harmless because the range of medium

work existing in significant numbers in the national economy includes many

occupations for which complex tasks are not required. See 20 C.F.R. Part 404,

Subpt. P, App’x 2, § 203.15 (directing a finding of “not disabled” for a claimant of

advanced age, limited to medium work, with a high school education and no

transferable skills); Brown-Hunter, 806 F.3d at 492 (explaining that an error is

harmless if it is inconsequential to the ultimate nondisability determination).

Finally, neither medical evidence submitted for the first time to the Appeals

Council, nor new medical evidence attached to Pigula’s opening brief, warrants a

remand for further proceedings. This later-produced evidence is not probative of

whether Pigula was disabled prior to his date last insured. See Wood v. Burwell,

837 F.3d 969, 977 (9th Cir. 2016) (setting forth standard for “sentence-six” remand

for consideration of new evidence); Turner v. Comm’r of Soc. Sec., 613 F.3d 1217,

1224 (9th Cir. 2010) (holding that ALJ properly did not address a social worker’s

3 post-insured-date opinion regarding a claimant’s ability to work).

AFFIRMED.