FILED
NOT FOR PUBLICATION OCT 10 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WENDY JEROME, No. 12-35409
Plaintiff - Appellant, D.C. No. 4:09-cv-00020-SEH
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted October 7, 2013**
Portland, Oregon
Before: SILVERMAN, W. FLETCHER, and CALLAHAN, Circuit Judges.
Wendy Jerome appeals the district court’s grant of summary judgment in
favor of the Commissioner’s denial of disability benefits. We have jurisdiction
*
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).
pursuant to 28 U.S.C. § 1291 and review the administrative decision for substantial
evidence. Molina v. Astrue, 674 F.3d 1104, 1110-11 (9th Cir. 2012). We affirm.
Jerome asserts that the ALJ: (1) erred when he failed to deem her right arm
paresthesia, her cervical stenosis, and her urinary stress incontinence as “severe”
impairments; (2) erred when he rejected her treating physician’s opinion that she
could only occasionally use her right hand and had severe limitations on her ability
to stand and walk; (3) erred in his determination as to her credibility; and (4) erred
in his rejection of the conclusions reached by the vocational expert when she was
asked to compare Jerome’s limitations to a hypothetical situation posed to her.
First, even if we were to hold that the ALJ committed legal error by finding
that Jerome’s right-arm paresthesia and cervical stenosis were not severe, such
error would be harmless. The ALJ found that Jerome’s HIV and spinal fracture
were severe impairments, and then considered evidence of all her impairments at
step four. The fact that the ALJ discussed both Jerome’s severe and non-severe
impairments at step four renders the distinction between severe and non-severe
impairments legally immaterial, and thus any alleged error was harmless. Lewis v.
Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (holding that where the ALJ considered
evidence of limitations posed by claimant’s bursitis at step four of the disability
analysis, any error in failing to consider bursitis “severe” at step two was
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harmless). The ALJ’s failure to explicitly address Jerome’s urinary stress
incontinence was likewise harmless because the limitations caused by this
impairment were incorporated into her residual functional capacity and it was thus
“irrelevant to the ALJ’s ultimate disability conclusion.” Stout v. Comm’r, 454 F.3d
1050, 1055 (9th Cir. 2006).
Second, the ALJ did not err in rejecting the opinion of Jerome’s treating
physician. The ALJ found material incongruities between the opinion that the
treating physician offered in the social security questionnaire and that which she
expressed in her personal records of Jerome’s treatment. This provided the ALJ
sufficient justification to reject the opinion. See Tommasetti v. Astrue, 533 F.3d
1035, 1041 (9th Cir. 2008); Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.
2005).
Third, the ALJ did not err in deciding to discredit Jerome’s subjective
statements concerning the intensity, persistence, and limiting effects of her
impairments. An ALJ’s credibility determination must be based on specific
findings supported by substantial evidence and clear and convincing reasons.
Tommasetti, 533 F.3d at 1039. Here, the ALJ provided a convincing explanation
for his credibility findings by pointing to the numerous instances in the
adjudicatory record where Jerome’s subjective complaints were not supported by
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the objective medical record. The ALJ’s findings are sufficiently specific to show
that the credibility determination was not arbitrary and was supported by
substantial evidence with clear and convincing reasons. Tommasetti, 533 F.3d at
1039–40.
Lastly, the ALJ refused to accept that the work limitations set forth in a
hypothetical posed to the vocational expert were an accurate description of
Jerome’s own limitations. This was not an error. “An ALJ is free to accept or
reject restrictions in a hypothetical question that are not supported by substantial
evidence.” Osenbrock v. Apfel, 240 F.3d 1157, 1164-65 (9th Cir. 2001). Because
the hypothetical depended on the opinion of the treating physician (which the ALJ
rejected) and on Jerome’s own testimony (which the ALJ found to be not fully
credible), it was not supported by substantial evidence and the ALJ was therefore
free to reject it.
AFFIRMED.
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