Stella Castaneda v. Andrew Saul

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 10, 2020
• Docket: 19-17511
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION DEC 10 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

STELLA M. CASTANEDA, No. 19-17511

Plaintiff-Appellant, D.C. No. 3:19-cv-00466-VC

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

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Vince Chhabria, District Judge, Presiding

Submitted December 8, 2020** San Francisco, California

Before: MURGUIA and CHRISTEN, Circuit Judges, and SESSIONS,*** 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 William K. Sessions III, United States District Judge for the District of Vermont, sitting by designation. Stella Castaneda appeals the district court’s decision affirming the

Commissioner of Social Security’s denial of her applications for disability and

supplemental security income. We review de novo and may set aside a denial of

benefits only if it is unsupported by substantial evidence or the administrative law

judge (ALJ) committed legal error. Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir.

2020). We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm. Because

the parties are familiar with the facts, we recount them only as necessary to resolve

the arguments on appeal.

1. Castaneda first argues the ALJ failed to adequately account for her

speech impairment by limiting her residual function capacity (RFC) to occasional

public contact because qualitative differences in speech cannot be addressed by a

quantitative limitation. In other words, Castaneda argues her impairment affected

her ability to clearly communicate, not her ability to communicate frequently. But

here, the ALJ weighed the medical evidence and subjective testimony about

Castaneda’s symptoms, and concluded that Castaneda’s dysarthia was mild and did

not significantly impact the quality of her communication. Castaneda does not

challenge the ALJ’s weighing of the medical and subjective evidence on appeal.

No error occurred because the ALJ was only required to include limitations in the

2 RFC that the ALJ found credible and supported by the record. Bayliss v. Barnhart,

427 F.3d 1211, 1217 (9th Cir. 2005).

2. Castaneda next argues the ALJ’s finding that Castaneda could perform

her past occupation of Office Helper was inconsistent with the definition from the

Dictionary of Occupational Titles. We disagree. Per the dictionary, the Office

Helper occupation has a language development requirement of 2, which requires

the ability to “[s]peak clearly and distinctly with appropriate pauses and emphasis,

correct punctuation, [and] variation in word order, using present, perfect, and

future tenses.” NAT’L ACAD. OF SCIS., COMM. ON OCCUPATIONAL

CLASSIFICATION, DICTIONARY OF OCCUPATIONAL TITLES, APP. C, PT. III (1981)

https://www.dol.gov/agencies/oalj/PUBLIC/DOT/REFERENCES/DOTAPPC.

Castaneda argues the ALJ made no RFC finding regarding Castaneda’s ability to

speak clearly and distinctly. But as explained, the ALJ summarized medical

opinion testimony supporting the finding that Castaneda’s dysarthia was mild and

that she was able to adequately express herself. The ALJ also determined

Castaneda was able to effectively communicate verbally and fully participate at her

hearing. Moreover, to the extent the ALJ relied on the testimony of the vocational

expert in concluding Castaneda could perform her past occupation, such reliance

was proper because the “hypothetical that the ALJ posed to the [vocational expert]

3 contained all of the limitations that the ALJ found credible and supported by

substantial evidence in the record.” Bayliss, 427 F.3d at 1217.

3. Finally, Castaneda argues the Commissioner waived the right to

challenge Castaneda’s eligibility for Title II disability benefits by failing to include

the ALJ’s decision with respect to her Title II application in the record lodged with

the district court.1 This was merely a clerical error. Castaneda’s summary

judgment motion before the district court challenged the ALJ’s finding of non-

disability, and the ALJ’s determination of non-disability was the same with respect

to both applications and relied on the same five-step disability framework. The

district court acknowledged that Castaneda was seeking “judicial review of the

ALJ’s determination that she is not disabled.” Accordingly, we decline to find the

Commissioner waived any argument pertaining to Castaneda’s eligibility for

disability benefits.

AFFIRMED.

1 The Commissioner’s unopposed motion to take judicial notice of the ALJ’s decision with respect to Castaneda’s Title II application, Dkt. 18-1, is granted. See Small v. Avanti Health Sys., LLC, 661 F.3d 1180, 1186 (9th Cir. 2011). 4