                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 30 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



RICHARD L. NORTON,                               No. 10-55878

               Plaintiff - Appellant,            D.C. No. 5:09-cv-01865-R-CT

    v.
                                                 MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
Social Security,

               Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                            Submitted February 16, 2012 **
                                Pasadena, California

Before: PREGERSON and BEA, Circuit Judges, and PRATT, 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 Robert W. Pratt, District Judge for the U.S. District
Court for Southern Iowa, sitting by designation.
      Richard L. Norton (“Norton”) appeals from a denial of disability insurance

benefits under Title II and Title XVI of the Social Security Act. The

Administrative Law Judge (“ALJ”) upheld the Commissioner of Social Security’s

(“Commissioner”) finding that Norton was not disabled. A timely request for

review was declined by the Appeals Council. We review that court’s judgment in

favor of the Commissioner pursuant to 28 U.S.C. § 1291. We affirm.

      At Step Five of the Sequential Analysis, the ALJ found that Norton: (1) had

not worked since his alleged disability onset date of January 1, 2005; (2) has severe

impairments of seizure disorder and lower back pain; (3) Norton’s severe

impairments do not meet or equal one of the Listed Impairments described in 20

C.F.R. Pt. 404, Subpt. P, App. 1; (4) retained the residual functional capacity to

perform medium work and simple, repetitive tasks, but should not perform

repetitive overhead motions and should not be exposed to hazards; and, (5) work

exists in significant numbers that Norton is capable of performing. In making the

finding of residual functional capacity, the ALJ found that Norton’s statements

regarding the intensity, persistence, and limiting effects of his symptoms were

credible only to the extent they were consistent with the residual functional

capacity finding.

      Except for Norton’s brief hospitalization in July 2005, there is no other

medical evidence which offers any explanation for Norton’s claims of inability to
function because of fatigue and shortness of breath. No doctor opined that Norton

should not work because of his impairments. Assuming, arguendo, that the ALJ

did not properly articulate why he did not fully credit the testimony of Norton or

his sister, a remand to correct the supposed errors would not result in a different

decision, because, on this record, no reasonable ALJ would find that the evidence

supports a finding of disability. See Stout v. Commissioner, Social Sec. Admin,

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

         The hypothetical question that the ALJ put to the vocational expert

adequately described the limitations of Norton’s severe impairments. See

Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 578 (9th Cir.

1988).

         Norton’s argument that the Commissioner constructively reopened his claim

must also fail. As the Commissioner points out, there is nothing before this court

to support a finding that the period of disability beginning May 14, 2009, was

based on the same evidence available during the period under consideration before

the ALJ.

         Accordingly, the decision of the District Court is AFFIRMED.
