FILED
NOT FOR PUBLICATION OCT 26 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DEBRA WENTZ, No. 10-35003
Plaintiff - Appellant, DC No. 3:08 cv-0661 PK
v.
MEMORANDUM *
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding
Submitted October 8, 2010 **
Portland, Oregon
Before: TASHIMA, PAEZ, and CLIFTON, Circuit Judges.
Debra Wentz appeals the district court’s judgment affirming the Social
Security Commissioner’s denial of her application for disability insurance benefits
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
and supplemental security income under Titles II and XVI of the Social Security
Act. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
I.
Wentz contends that the ALJ erred at Step 4 of the sequential evaluation
process by rejecting three categories of evidence: (1) Wentz’s testimony
concerning severe and disabling symptoms, such as an inability to sit for longer
than twenty minutes; (2) the corroborating testimony of three lay witnesses; and
(3) the opinions of two treating physicians, Dr. Molloy and Dr. Kenyon.
We conclude that the ALJ properly rejected each category of evidence.
Wentz’s testimony about the severity of her symptoms conflicted with reports by
her psychiatrist, Dr. Sally Godard, indicating that Wentz was in fair health during
much of the relevant time period. Wentz’s testimony also conflicted with evidence
of her daily activities, which suggested that she led a more active life than her
alleged symptoms would permit. This contradictory evidence adequately supports
the ALJ’s negative credibility determination under the clear and convincing
standard. See Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006); Thomas v.
Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). Dr. Godard’s reports and the
evidence of daily activities also conflict with, and support the ALJ’s rejection of,
the lay witness testimony. See Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d
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685, 694 (9th Cir. 2009). Finally, the ALJ did not err by discounting the treating
physicians’ opinions, which were based almost entirely on Wentz’s subjective
complaints. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th
Cir. 2009).
II.
Wentz also contends that the ALJ made two errors at Step 5. First, she
argues the ALJ propounded an inaccurate hypothetical to the vocational expert
(“VE”). The hypothetical asked the VE to assume that Wentz, due to mental
impairments, could perform only “simple 1, 2, 3 step work.” In contrast, in the
residual functional capacity (“RFC”) determination, the ALJ described Wentz’s
mental impairment as limiting her to “simple, routine, repetitive work.” Although
the hypothetical described the mental impairment differently than the RFC, this
difference in diction does not render the hypothetical inaccurate. Wentz does not
cite any authority suggesting that a VE would understand the phrase “simple,
routine, repetitive work” to impose more severe limitations than the phrase “simple
1, 2, 3 step work.” And the record shows that the VE understood the “simple 1, 2,
3” limitation to be so restrictive as to permit performance of only unskilled jobs,
while excluding both skilled and semi-skilled work. Accordingly, we conclude
that the discrepancy between the language of the hypothetical and the RFC was
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immaterial. See Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995) (noting that
VE hypothetical is proper so long as it “reflects all the claimant’s limitations”).
Second, Wentz contends that the VE’s testimony (on which the ALJ relied)
conflicted with the Dictionary of Occupational Titles (“DOT”). To rely on
vocational expert testimony, the ALJ must ask the VE if his or her testimony is
consistent with the DOT. Massachi v. Astrue, 486 F.3d 1149, 1152-53 (9th Cir.
2007) (citing SSR 00-4p). If the VE identifies a conflict with the DOT, the ALJ
must obtain a “reasonable explanation” for the conflict before relying on the
testimony. Id. at 1153.
Here, the ALJ asked the VE to identify any conflicts between her testimony
and the DOT, and the VE identified none. Wentz’s attorney then cross-examined
the VE, but did not challenge her representation that her testimony comported with
the DOT. Accordingly, the ALJ met his obligations under Massachi and SSR 00-
4p to investigate potential conflicts with the DOT, and his reliance on the VE
testimony was therefore proper.
AFFIRMED.
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