FILED
NOT FOR PUBLICATION OCT 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LEANNIA D. COWEN, No. 08-17641
Plaintiff - Appellant, D.C. No. 2:07-cv-01138-KJM
v.
MEMORANDUM *
COMMISSIONER OF SOCIAL
SECURITY,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, Magistrate Judge, Presiding
Submitted October 6, 2010 **
San Francisco, California
Before: HUG, RYMER and N.R. SMITH, Circuit Judges.
*
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).
Leannia Cowen appeals the district court’s decision affirming the
Administrative Law Judge’s (“ALJ”) denial of her application for disability
insurance benefits. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm.
1. The ALJ properly relied on Cowen’s prior inconsistent statements about her
illicit drug use, factual contradictions regarding her physical limitations, lack of
medical evidence and treatment regimen, and daily activities to find Cowen’s
testimony was not credible. The ALJ’s reasoning is supported by the record and
based on acceptable factors. See Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir.
1996); Soc. Sec. Ruling 96-7p. The ALJ thus satisfied the “clear and convincing”
standard for rejecting a claimant’s testimony. See Dodrill v. Shalala, 12 F.3d 915,
918 (9th Cir. 1993).
2. Cowen’s impairments must meet or equal both parts A and B of Listing
12.04 for her to be presumptively disabled under that Listing. See 20 C.F.R. Part
404, Subpt. P, App. 12.04. Substantial evidence supports the ALJ’s finding that
Cowen’s impairments did not meet or equal part B, which requires “marked”
limitations in two of four listed life activities. See 20 C.F.R. Part 404, Subpt. P,
App. 12.04(B). “Marked” is defined as “more than moderate, but less than
extreme.” 20 C.F.R. Part 404, Subpt. P, App. 12.00(C). Both doctors who
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performed a psychological evaluation of Cowen concluded that she could function
socially and in a work environment. The record reflects that Cowen’s treating
physician noted her “depression is doing well.” Cowen’s reliance on the Global
Assessment Functioning (“GAF”) score of 55-60 assigned by one doctor is
misplaced. Even if the GAF was accepted as a method of evaluating the severity
of impairments,1 Cowen admits in her reply brief that her GAF score of 55-60
indicates moderate difficulty in social and occupational functioning. Because
“moderate” limitation is less than “marked” limitation, the ALJ had substantial
evidence to find Cowen did not meet or equal part B of Listing 12.04.2
3. The ALJ did not err at Step 5 of the disability analysis. First, because the
ALJ properly discredited Cowen’s testimony, the ALJ had substantial evidence in
the form of the remaining medical records indicating Cowen could perform
1
The GAF score (as a method for evaluating the severity of
impairments) has been specifically rejected by the Social Security Administration.
65 Fed. Reg. 50746, 50764-65 (Aug. 21, 2000).
2
Cowen waived her arguments regarding Listings 1.02, 12.04(C) and
12.05(C) by not raising these arguments to the district court. See Warre v. Comm’r
of Soc. Sec. Admin., 439 F.3d 1001, 1007 (9th Cir. 2006); Edlund v. Massanari,
253 F.3d 1152, 1158 & n.7, 1160 n.9 (9th Cir. 2001). Cowen made no mention of
Listings 1.02 or 12.05 in any of her pleadings or briefs to the district court. In
addition, although Cowen raised and argued that she met or equaled Listing 12.04
to the district court, her argument only addressed parts A and B and did not address
part C.
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medium exertional work. Second, the ALJ specifically found Cowen’s capacity
for medium work was not significantly diminished by her nonexertional (mental)
limitations of limited public contact and unskilled entry-level work. If an ALJ
finds a claimant’s “nonexertional limitations do not significantly affect his
exertional capabilities,” the ALJ may use the medical-vocational guidelines (“the
grids”) in lieu of calling a vocational expert. See Bates v. Sullivan, 894 F.2d 1059,
1063 (9th Cir. 1990), overruled on other grounds by Bunnell v. Sullivan, 947 F.2d
341 (9th Cir. 1991) (en banc). Therefore, the ALJ correctly used the grids to find
that Cowen was not disabled, and instead, could perform jobs that exist in
sufficient numbers in the national economy.
AFFIRMED.
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