Gregory Brooks v. Andrew Saul

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 28, 2019
• Docket: 18-35169
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 28 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GREGORY BROOKS, No. 18-35169

Plaintiff-Appellant, D.C. No. 6:16-cv-01359-SI

v. MEMORANDUM* ANDREW M. SAUL, Commissioner of Social Security Administration,

Defendant-Appellee.

Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding

Submitted August 26, 2019**

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

Gregory Brooks appeals the district court’s decision affirming the

Commissioner of Social Security’s denial of his applications for disability

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

* 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). Social Security Act. This court reviews the district court’s order de novo, and may

set aside the denial of benefits only if it is not supported by substantial evidence or

is based on legal error. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir.

2015).

The Administrative Law Judge (“ALJ”) provided specific, clear and

convincing reasons for finding that Brooks’ statements concerning the intensity,

persistence and limiting effects of his symptoms were not entirely credible. First,

the ALJ reasonably concluded that the medical record did not support Brooks’

claimed limitations. Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (holding

that the ALJ may consider if there is a lack of medical evidence supporting

claimant’s allegations, but this factor cannot form the only basis for discounting

subjective symptom testimony). Second, the ALJ reasonably found that Brooks’

treatment was essentially conservative in nature, and that this was a basis for

questioning the credibility of his allegations concerning the severity of his

condition. Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007). Third, the ALJ

reasonably found that Brooks’ daily activities were inconsistent with his claims of

complete inability to perform work activity. Chaudhry v. Astrue, 688 F.3d 661,

672 (9th Cir. 2012) (holding that when weighing credibility, an ALJ may consider

a claimant’s daily activities).

2 18-35169 The ALJ provided a germane reason for discounting the lay witness

statement of Brooks’ wife. Brooks’ wife largely repeated his testimony that he

spent much of his day laying down and needed help with most tasks. The ALJ

reasonably concluded that this lay witness report was inconsistent with the medical

evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (holding that

conflict with objective medical evidence is a germane reason to discount lay

testimony). Moreover, the ALJ rejected similar subjective complaints made by

Brooks as not credible. Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685,

694 (9th Cir. 2009) (holding that when a lay witness’s testimony is similar to a

discounted claimant’s testimony, this is a germane reason for rejecting the lay

witness testimony.)

The ALJ properly determined at step five of the sequential evaluation

process that Brooks could perform the medium exertional level job of laundry

worker, and, therefore, he could perform work that exists in significant numbers in

the national economy. The Commissioner concedes that the ALJ erred in finding

that Brooks could perform two of three medium level jobs, but the error is

harmless because the ALJ properly found that Brooks could perform the job of

laundry worker. Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999). Brooks

contends that the ALJ should have applied the applicable grid rule for light work,

rather than applying the rule for medium work, as a framework for adjudication

3 18-35169 because the ALJ identified only one medium unskilled occupation that Brooks

could perform. It is not “clear,” however, that the occupational base for medium

work was significantly eroded so as to warrant application of the lower grid rule

for light work. SSR 83-14 at *3, *6. The ALJ reasonably relied on the vocational

expert’s testimony that Brooks could perform the medium exertion occupation of

laundry worker in finding that Brooks could perform other work available in

significant numbers in the national economy. Burkhart v. Bowen, 856 F.2d 1335,

1340-41 (9th Cir. 1988) (holding that when a claimant has significant

nonexertional limitations the Commissioner cannot rely on the medical-vocational

guidelines, but instead must consult a vocational expert). The vocational expert

testified that there are 43,931 laundry worker jobs in the national economy, and

this constitutes a “significant” number of jobs in the national economy. See e.g.

Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 528-29 (9th Cir. 2014) (holding

that 25,000 jobs in the national economy was significant). Accordingly,

substantial evidence supports the ALJ’s conclusion that Brooks could perform jobs

that exist in significant numbers in the national economy.

AFFIRMED.

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