Tom Masterson v. Kilolo Kijakazi

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 20 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

TOM RAY MASTERSON, No. 19-35729

Plaintiff-Appellant, D.C. No. 2:18-cv-01116-AA

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

Defendant-Appellee.

Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding

Submitted January 20, 2022**

Before: D.W. NELSON, BRESS, and BUMATAY, Circuit Judges.

Tom Ray Masterson appeals the district court’s judgment 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 jurisdiction under 28

* 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). U.S.C. § 1291. We review de novo, Ford v. Saul, 950 F.3d 1141, 1153-54 (9th

Cir. 2020) (citation omitted), and we affirm.

The administrative law judge (“ALJ”) found that Masterson had the residual

functional capacity to perform work at all exertional levels and had solely

nonexertional limitations. Accordingly, at Step Five of the sequential analysis, the

ALJ properly consulted a vocational expert, rather than relying on the Medical-

Vocational Guidelines, or “grids.” See 20 C.F.R. pt. 404, Subpt. P., app. 2, Rule

200.00(e)(1) (the grids “do not direct factual conclusions of disabled or not

disabled for individuals with solely nonexertional types of impairments”); Social

Security Ruling 85-15, 1985 WL 56857, at *3; cf. Maxwell v. Saul, 971 F.3d 1128,

1130 (9th Cir. 2020) (reasoning that when the claimant has both exertional and

nonexertional limitations, the ALJ must consult the grids first). The vocational

expert’s testimony regarding light jobs that Masterson could perform did not

require the ALJ to find that Masterson was capable only of sedentary or light work,

and therefore to consult the grids. Cf. Cooper v. Sullivan, 880 F.2d 1152, 1157

(9th Cir. 1989) (reasoning that the ALJ erred in failing to apply grids because the

vocational expert and other witnesses testified that the claimant was capable of

performing only sedentary or light work, which dictated a finding of disabled

under the grids). Unlike the vocational expert in Cooper, the vocational expert

here testified that, given Masterson’s nonexertional limitations, she found jobs that

2 he could perform, but none of those jobs required medium (or heavy) exertion.

This testimony did not trigger any duty to consult the grids or require the ALJ to

apply the grid rule applicable to light work. See 20 C.F.R. pt. 404, Subpt. P., app.

2, Rule 200.00(e)(1).

AFFIRMED.