                                                                           FILED
                           NOT FOR PUBLICATION                             MAY 18 2015

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


LEANNA JEAN PRUITT,                              No. 12-35399

              Plaintiff - Appellant,             D.C. No. 3:10-cv-01303-HZ

 v.
                                                 MEMORANDUM*
COMMISSIONER OF SOCIAL
SECURITY,

              Defendant - Appellee.


                   Appeal from the United States District Court
                            for the District of Oregon
                   Marco A. Hernandez, District Judge, Presiding

                              Submitted May 6, 2015**
                                 Portland, Oregon

Before: W. FLETCHER and HURWITZ, Circuit Judges and CURIEL,*** District
Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 Gonzalo P. Curiel, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
      Appellant Leanna Jean Pruitt appeals the district court’s order affirming the

Administrative Law Judge’s (“ALJ”) denial of her application for disability

insurance benefits and widow’s insurance benefits under the Social Security Act.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Pruitt contends that the ALJ made harmful errors when he determined that

(1) her mental impairments are not severe and (2) her back problems do not meet

or equal a listed impairment. She further contends that the ALJ erred by (3)

rejecting her allegations that she cannot sit at a desk for a complete workday, (4)

rejecting her treating physician’s opinion that she is disabled and incapable of

lifting anything, and (5) ignoring a lay witness’s opinion about her limitations.

She argues that the aforementioned errors led the ALJ to find incorrectly that Pruitt

has a residual functional capacity (“RFC”) that enables her to perform sedentary

work, including her past work.

      We review de novo the district court’s order affirming the ALJ’s denial of

social security benefits, reversing “only if the ALJ’s decision was not supported by

substantial evidence in the record as a whole or if the ALJ applied the wrong legal

standard.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). We “may not

reverse an ALJ’s decision on account of an error that is harmless.” Id. at 1111.




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We conclude that none of Pruitt’s six challenges to the ALJ’s decision entitles her

to relief under this standard.

      First, there is substantial evidence that Pruitt’s mental disorders do not

impair her ability to perform sedentary work. This evidence includes the

consulting psychologist’s opinion that Pruitt’s depressive issues are mild and that

she does not suffer from any cognitive impairment, as well as treatment notes

indicating that her stress-related symptoms improve with treatment. The ALJ also

correctly found that Pruitt’s sleep disorder is non-severe. Although she testified

that she needs to lie down during the day, Pruitt attributed this to her back pain, not

to fatigue stemming from her psychological conditions. Importantly, despite her

difficulties, Pruitt is able to live independently and maintain the same level of

social activity as she did before she experienced these conditions.

      Second, Pruitt is correct that the ALJ concluded, without explanation, that

her physical impairments do not meet or equal a listed impairment. But this was

not error because Pruitt failed to present a theory to the ALJ as to how her

combined impairments meet or equal Listing 1.04C, and therefore the ALJ did not

need to explain his conclusion. See Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir.

2001). This distinguishes her from the claimant in Marcia v. Sullivan, 900 F.2d

172 (9th Cir. 1990).

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      Third, the ALJ provided a clear and convincing reason to reject Pruitt’s

allegation about her ability to sit long enough to work. See Lingenfelter v. Astrue,

504 F.3d 1028, 1036 (9th Cir. 2007). Her account was inconsistent with the

medical record, including Dr. Ogisu’s 2004 opinion that she could sit for 6 hours, a

2005 X-ray that showed only mild degenerative changes and no acute

abnormalities, Dr. Vander Waal’s 2006 note that his only objective finding was

tenderness in her lower back, and Dr. Rinehart’s 2007 opinion that she could sit for

8 hours of a workday.

      Fourth, the ALJ provided specific and legitimate reasons for rejecting the

opinion of Pruitt’s treating physician in favor of the opinion of an examining

physician. See Thomas v. Barnhart, 278 F.3d 947, 956–57 (9th Cir. 2002). The

ALJ properly rejected Dr. Rinehart’s 2005 opinion because Pruitt’s disability status

is a legal conclusion, not a medical one. Tonapetyan v. Halter, 242 F.3d 1144,

1148 (9th Cir. 2001). And he properly rejected Dr. Rinehart’s 2007 opinion that

Pruitt is incapable of lifting anything because Dr. Rinehart recognized that Pruitt

could carry something (a cane) and because Pruitt told Dr. Vander Waal in 2006

that she could lift up to 10 pounds. Evidence postdating Dr. Rinehart’s 2007

opinion provides additional reason to reject it. At the hearing in 2008, Pruitt said




                                          4
that she could lift up to 5 pounds. And, in 2008, Dr. Rinehart noted that Pruitt

could perform yard work, which presumably entails some lifting.

      Fifth, although the ALJ erred when he ignored the third-party function report

submitted by Pruitt’s pastor, Pruitt has not met her burden to show that this error

was harmful. Molina, 674 F.3d at 1111. Because Pastor Krane’s knowledge of

Pruitt’s lifting abilities was vague and spotty, and because his observations about

her stamina and ability to handle stress do not suggest that her condition is severe

or would prevent her from performing sedentary work, we “can confidently

conclude that no reasonable ALJ, when fully crediting the testimony, could have

reached a different disability determination.” Stout v. Comm’r, Soc. Sec. Admin.,

454 F.3d 1050, 1056 (9th Cir. 2006).

      Sixth, substantial evidence supports the ALJ’s conclusion that Pruitt can

perform her past work as a telemarketer and receptionist. Because the ALJ was

permitted to reject some of the limitations assessed by Pruitt, Dr. Rinehart, and

Pastor Krane, the ALJ was not required to incorporate them into his RFC or the

hypothetical questions he posed to the vocational expert. See Osenbrock v. Apfel,

240 F.3d 1157, 1164–65 (9th Cir. 2001) (“An ALJ is free to accept or reject

restrictions in a hypothetical question that are not supported by substantial

evidence.”). And, contrary to Pruitt’s contention, it is irrelevant that the Dictionary

                                           5
of Occupational Titles states that receptionists must frequently reach but the ALJ

found that Pruitt could only occasionally reach. The ALJ was evaluating whether

Pruitt could perform her work as she actually performed it—with only occasional

reaching—and not as it is generally performed. See Pinto v. Massanari, 249 F.3d

840, 845 (9th Cir. 2001) (citing Social Security Ruling 82-61).

      AFFIRMED.




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