Alberto Cadena v. MICHAEL J. ASTRUE, Commissioner Social Security Administration

This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Circuit Rule 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALBERTO CADENA,
Plaintiff - Appellant,
v.
MICHAEL J. ASTRUE, Commissioner
Social Security Administration,
Defendant - Appellee.
No. 09-35136
D.C. No. 3:07-cv-01741-BR
MEMORANDUM *
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted February 4, 2010
Seattle, Washington
Before: RYMER, GOULD and BYBEE, Circuit Judges.
Alberto Cadena appeals the district court’s affirmance of the Commissioner
of Social Security’s denial of his application for Disability Insurance Benefits and
Supplemental Security Income payments under Titles II and XVI of the Social
Security Act. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.
FILED
FEB 11 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The parties are familiar with the factual and procedural history of this case1
and we do not recount that history in detail here.
2
Cadena first argues that the ALJ improperly rejected the opinion of Dr. Bert,
one of Cadena’s treating physicians. Dr. Bert’s residual functional capacity (RFC)1
questionnaire contained limitations on walking, sitting, standing, and lifting,
which, when combined with Cadena’s need to miss work and take unscheduled
breaks, would prevent Cadena from engaging in full-time work. The ALJ accepted
Dr. Nolan’s less-restrictive medical testimony, instead of Dr. Bert’s more-
restrictive medical opinion. This resulted in an RFC without all of the limitations
to which Dr. Bert had opined. This decision of the ALJ was supported by
substantial evidence. See Valentine v. Comm’r of Soc. Sec., 574 F.3d 685, 690 (9th
Cir. 2009). Dr. Bert’s medical opinion was inconsistent with Cadena’s reported
level of activity and evidence of improvement in Cadena’s more-recent treatment
notes, as well as with Dr. Nolan’s opinion. The ALJ also found it significant that
Dr. Bert’s surgery recommendation conflicted with another examining physician’s
recommendation against surgery in favor of nonoperative therapies such as weight
loss, physical therapy, and exercise. The ALJ did not err in rejecting Dr. Bert’s
medical opinion.

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We express no opinion on the continuing evidentiary value of so-called2
“Waddell’s tests.” Although the ALJ discussed Dr. Nolan’s administration of
Waddell’s axial load test in his decision, the ALJ relied on substantial evidence
apart from the axial load test in finding Cadena not credible.
3
Cadena’s second claim of error is that the ALJ improperly found Cadena not
fully credible about the intensity and duration of his back and leg pain. The ALJ,
however, gave several reasons for finding Cadena not entirely credible. First,
Cadena’s reported daily activities included cooking, cleaning, and gardening,
which were inconsistent with pain at a level of intensity that would be disabling.
Second, Cadena’s treatment notes, which included signs of improvement and a
lack of objective medical evidence showing disabling pain, undermined Cadena’s
credibility. Finally, Dr. Nolan observed that Cadena exaggerated his symptoms by
voluntarily twitching his leg and describing his pain as an “11” on a scale of 1 to
10. See Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) (a “tendency2
to exaggerate” is a proper credibility consideration). In our view, the reasons cited
by the ALJ constitute “specific, clear and convincing reasons” for declining to
fully credit Cadena’s subjective pain testimony and, as a result, the ALJ did not err
by rejecting Cadena’s testimony in part. See Vasquez v. Astrue, 572 F.3d 586, 592
(9th Cir. 2009).

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4
Cadena’s third claim is that the ALJ improperly rejected the lay witness
statements submitted by Wendy Deriso and Dorothy Stevens. The ALJ considered
the statements, but determined that they described Cadena as “considerably more
limited than medical findings would support.” The ALJ cited the medical
evidence, including treatment notes that described Cadena’s daily activities, and
determined that the lay witness statements conflicted with the medical evidence.
See Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) (“One reason for which an
ALJ may discount lay testimony is that it conflicts with medical evidence.”). The
reason given by the ALJ was “germane” to both Deriso’s and Steven’s statements,
see Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009), so the ALJ did not err in
declining to fully credit the statements.
We agree with Cadena’s fourth claim that the ALJ posed an improper
hypothetical to the vocational expert. Dr. Nolan’s medical views, to which the
ALJ gave controlling weight, suggested that Cadena had limitations on pushing
and pulling with his lower extremities. Nonetheless, the ALJ did not include the
push/pull limitation in the hypothetical to the vocational expert and the expert
testified Cadena could work as a delivery driver. The vocational expert’s
testimony on cross examination showed that Cadena likely could not perform
delivery-driver work if he had a lower-extremity limitation, so the ALJ’s step four

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5
ruling did not reflect all of Cadena’s limitations and thus was not supported by
substantial evidence. See Osenbrock v. Apfel, 240 F.3d 1157, 1164–65 (9th Cir.
2001).
However, the ALJ’s alternative ruling at step five—that Cadena could
perform light, unskilled work that existed in significant numbers in the national
economy—renders the step four error harmless. See Tommasetti v. Astrue, 533
F.3d 1035, 1042 (9th Cir. 2008) (“Although the ALJ’s step four determination
constitutes error, it is harmless error in light of the ALJ’s alternative finding at step
five.”). Cadena argues that the ALJ erred in finding at step five that Cadena could
perform the position of merchandise marker, because that position involves the use
of fine-motor skills such as frequent fingering. But none of the three physicians
that completed an evaluation pertinent to determining the RFC for Cadena
concluded that he suffered limitations on the use of his hands. Moreover, Cadena
testified at the administrative hearing that he had no difficulty reaching, handling,
or grasping things. It was not error for the ALJ to find Cadena capable of working
as a merchandise marker because substantial evidence supported the premise that
Cadena was able to perform fine-motor tasks with his hands.
AFFIRMED.

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