Glen Earl Vivian v. ANDREW M. SAUL, Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GLEN EARL VIVIAN,
Plaintiff-Appellant,
v.
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
No. 17-16254
D.C. No. 2:16-cv-00227-KJN
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Kendall J. Newman, Magistrate Judge, Presiding
Submitted October 16, 2019**
Before: GOODWIN, LEAVY, and SILVERMAN, Circuit Judges.
Glen Earl Vivian appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of Vivian’s application for disability
insurance benefits under Title II of the Social Security Act. We have jurisdiction
under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We review de novo, Attmore v.
* 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).
FILED
OCT 18 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Colvin, 827 F.3d 872, 875 (9th Cir. 2016), and we affirm.
The Administrative Law Judge (“ALJ”) proffered specific, clear, and
convincing reasons for discounting Vivian’s testimony. See Tommasetti v. Astrue,
533 F.3d 1035, 1039 (9th Cir. 2008) (ALJ may discredit claimant’s testimony
based on “‘prior inconsistent statements concerning the symptoms, and other
testimony by the claimant that appears less than candid’” (citation omitted)).
Although the ALJ failed to provide germane reasons for discounting lay witness
evidence, the error was harmless because the lay witnesses “did not describe any
limitations beyond those [the claimant] described, which the ALJ discussed at
length and rejected based on well-supported, clear and convincing reasons.”
Molina v. Astrue, 674 F.3d 1104, 1122 (9th Cir. 2012).
The ALJ provided specific and legitimate reasons, supported by substantial
evidence, for rejecting the controverted opinions of Vivian’s treating physician, Dr.
S.K. Uppal. See Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017); see also
Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (ALJ
may discount medical opinions that are not supported by the record as a whole or
by objective medical findings).
Any error at step two in failing to list Vivian’s hand, knee, and hip

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impairments and spinal osteoarthritis was harmless because the ALJ resolved step
two in Vivian’s favor and considered all of his symptoms in formulating the
residual function capacity (“RFC”). See Buck v. Berryhill, 869 F.3d 1040, 1048-49
(9th Cir. 2017).
Because the ALJ applied the proper legal standard in determining Vivian’s
RFC, and the ALJ’s determination is supported by substantial evidence, we reject
Vivian’s challenge to the RFC. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th
Cir. 2005) (“We will affirm the ALJ’s determination of [the claimant’s] RFC if the
ALJ applied the proper legal standard and his decision is supported by substantial
evidence.”).
Substantial evidence supports the ALJ’s finding at step five that, through
Vivian’s date last insured, jobs existed in significant numbers in the national
economy that Vivian could have performed. See Bray v. Comm’r of Soc. Sec.
Admin., 554 F.3d 1219, 1223 (9th Cir. 2009). The ALJ did not err in using the age
category that corresponded to Vivian’s age. See Lockwood v. Comm'r Soc. Sec.
Admin., 616 F.3d 1068, 1071 (9th Cir. 2010) (ALJ is not required to use an older
age category in borderline cases). Any error in failing to specify in the ALJ’s
hypotheticals that Vivian attended twelve years of school but did not graduate was

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harmless because it is “‘inconsequential to the ultimate nondisability
determination.’” Molina, 674 F.3d at 1115 (citation omitted). Because Vivian has
not shown that the ALJ erred earlier in the sequential analysis, his additional
arguments concerning step five lack support. See Stubbs-Danielson v. Astrue, 539
F.3d 1169, 1175-76 (9th Cir. 2008).
AFFIRMED.

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