Rudolph M. Petritz v. KILOLO KIJAKAZI, Acting Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUDOLPH M. PETRITZ,
Plaintiff-Appellant,
v.
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
No. 22-35155
D.C. No. 2:21-cv-00003-JTJ
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
John T. Johnston, Magistrate Judge, Presiding
Submitted December 8, 2022**
Seattle, Washington
Before: O’SCANNLAIN, McKEOWN, and MILLER, Circuit Judges.
Rudolph Petritz appeals from the district court’s order affirming the
Commissioner of Social Security’s denial of his application for disability insurance
benefits under the Social Security Act. We have jurisdiction under 28 U.S.C.
* 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
DEC 13 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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§ 1291, and we affirm.
1. Petritz argues that the testimony of the vocational expert about the
physical requirements of various potential jobs conflicts with the work
requirements set out in the Dictionary of Occupational Titles. If there is an
“obvious or apparent” conflict between a vocational expert’s opinion that a
claimant can do a job and the work requirements in the Dictionary, the
administrative law judge (ALJ) “must ask the expert to reconcile the conflict
before relying” on the testimony. Gutierrez v. Colvin, 844 F.3d 804, 807–08 (9th
Cir. 2016); see also SSR 00-4p, 65 Fed. Reg. 75,760 (2000).
Petritz perceives a conflict with respect to the requirements for climbing.
But as the ALJ explained, even if there is a conflict, it has no bearing on the
particular occupations the expert identified. Petritz is restricted from frequent
climbing. Of the five occupations the ALJ considered, only one requires climbing
at all, and that one, cleaner, requires it only occasionally. U.S. Dep’t of Labor,
Dictionary of Occupational Titles at 381.687-018 (4th ed. rev. 1991). All of the
occupations were within his abilities under either the expert’s testimony or the
Dictionary.
Petritz also perceives a conflict over the requirements relating to air quality.
Contrary to Petritz’s contention, Petritz’s residual functional capacity as identified
by the ALJ did not limit him to a work environment with clean air. Instead, the

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ALJ found that Petritz must avoid “concentrated exposure” to fumes, odors, dusts,
and poor ventilation. Petritz does not assert a conflict based on the concentrated-
exposure limitation, but if he had, any error would be harmless. Only one of the
occupations that the expert identified, packager, involves exposure to the restricted
elements. See Dictionary of Occupational Titles, supra, at 920.587-018. Excluding
that occupation, the other four occupations amount to more than 160,000 estimated
jobs in the national economy. Thus, sufficient work remained available to justify
the denial of benefits. See Shaibi v. Berryhill, 883 F.3d 1102, 1110 n.7 (9th Cir.
2017).
2. Petritz argues that his residual functional capacity should have
incorporated a limitation to light work. While Dr. Goldstein and treating physician
Dr. McGree favored a light-work restriction, treating physician Dr. Popovich saw
no need for work restrictions of any kind. And Drs. Fernandez and Schofield
maintained that Petritz could lift fifty pounds. The ALJ considered the varied
opinions of those doctors to formulate the medium-work and corresponding fifty-
pound limitation. See 20 C.F.R. § 404.1567(c).
If another doctor contradicts a treating physician’s opinion, “the ALJ may
discount the treating physician’s opinion by giving ‘specific and legitimate
reasons’ that are supported by substantial evidence in the record.” Ford v. Saul,
950 F.3d 1141, 1154 (9th Cir. 2020) (quoting Lester v. Chater, 81 F.3d 821, 830

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(9th Cir. 1995)); cf. Woods v. Kijakazi, 32 F.4th 785, 789 (9th Cir. 2022)
(describing the standard under the new regulations, which do not apply to this case
because Petritz filed his application for benefits before 2017). Dr. Popovich, Dr.
Fernandez, and Dr. Schofield contradicted the opinion of treating physician Dr.
McGree, and the ALJ gave specific and legitimate reasons for his decision. The
ALJ explained that a medium-work restriction reflected the opinions of Dr.
Fernandez and Dr. Schofield and the generally positive results of physical
examinations with Dr. Popovich. See Morgan v. Commissioner of Soc. Sec.
Admin., 169 F.3d 595, 602–03 (9th Cir. 1999) (rejecting a treating physician’s
opinion based in part on specific medical evidence and the opinion of a
nonexamining doctor). In addition, the ALJ took account of Petritz’s “robust
activities of daily living.” Petritz testified that he helped build a house for his
daughter and rewired the electrical configuration in his son’s home. “A conflict
between a treating physician’s opinion and a claimant’s activity level is a specific
and legitimate reason for rejecting the opinion.” Ford, 950 F.3d at 1155. Given the
reasons the ALJ cited, substantial evidence supports the decision to choose a
limitation approximating medium work.
3. Finally, Petritz argues that the ALJ erred in weighing evidence differently
in the 2020 decision as compared to the vacated 2018 decision. Because Petritz
raises this objection for the first time on appeal, he has forfeited the argument. See

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Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006). In any event, the argument
lacks merit. Because the prior decision was vacated, the ALJ was permitted to
reexamine the evidence and reach different conclusions.
AFFIRMED.

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