FILED
NOT FOR PUBLICATION DEC 10 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CYNTHIA D. BROWN, No. 09-17076
Plaintiff - Appellant, D.C. No. 2:08-CV-00901-FJM
v.
MEMORANDUM *
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, District Judge, Presiding
Submitted December 6, 2010 **
San Francisco, California
Before: HUG, D.W. NELSON, MCKEOWN, Circuit Judges.
Cynthia Brown appeals the district court’s order denying her request to
*
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).
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vacate the Social Security Administration’s decision that she is not eligible for
disability benefits. We affirm.
We review district court decisions upholding the denial of benefits de novo.
Flaten v. Sec’y of Health and Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)
(citing Matthews v. Shalala, 10 F.3d 678, 679 (9th Cir. 1993)). However, we may
overturn an Administrative Law Judge’s (“ALJ”) denial of benefits “‘only if it is
not supported by substantial evidence or is based on legal error.’” Morgan v.
Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999) (quoting
Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). Substantial evidence
means “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id. It is “more than a mere scintilla but less than a
preponderance.” Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005)
(quotations omitted). Thus, we must uphold the ALJ even when “evidence exists
to support more than one rational interpretation,” as long as the ALJ’s
interpretation is “supported by inferences reasonably drawn from the record.”
Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
The ALJ did not err at step three in the disability analysis when he
determined that Ms. Brown does not have a presumptively disabling impairment
under Listing 12.04 of 20 C.F.R. Pt. 404, Subpt. P, App. 1. In order to be
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presumptively disabled under the Listings, a claimant “must present medical
findings equal in severity to all the criteria for the one most similar listed
impairment.” Sullivan v. Zebley, 493 U.S. 521, 531 (1990) (emphasis in original)
(citing 20 C.F.R. § 416.926(a) (1989)). Listing 12.04, which pertains to affective
disorders, provides that “[t]he required level of severity . . . is met when the
requirements in both [subsections] A and B are satisfied, or when the requirements
in [subsection] C are satisfied.”1 20 C.F.R. Pt. 404, Subpt. P, App. 1. Here, the
ALJ properly examined the requirements of subsections B and C, and concluded
that Ms. Brown did not meet their criteria. ER 97a-104a. The ALJ considered Ms.
Brown’s subjective claims regarding her condition, medical evidence submitted by
numerous examining and treating physicians, and a third party report filed by Ms.
Brown’s sister. While Ms. Brown points to evidence in her favor on this issue, we
conclude that there was sufficient contrary evidence in the record for the ALJ to
reach the opposite conclusion. See ER 05a-06a.
The ALJ did not err in his determination that Ms. Brown’s testimony was
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Section A describes relevant symptoms (e.g., appetite disturbance, sleep
disturbance, decreased energy, etc.); Section B describes the required effects of
those symptoms (e.g., “[m]arked restriction of activities of daily living,” “[m]arked
difficulties in maintaining social functioning,” etc.); and Section C describes the
criteria for determining whether the claimant has a qualifying “chronic affective
disorder.” 20 C.F.R. Pt. 404, Subpt. P, App. 1.
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not wholly credible. An ALJ is permitted to reject a claimant’s testimony based on
credibility, but must do so with specific findings supporting the conclusion.
Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991) (en banc). Where, as
here, there is “affirmative evidence suggesting . . . malingering” in the record,
Smolen v. Chater, 80 F.3d 1273, 1283-84 (9th Cir. 1996), the ALJ’s reasons for
rejecting the claimant’s testimony need not reach the clear and convincing
standard. Id.; Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th
Cir. 2008); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995) (citations omitted).
In this case, we agree with the district court that the ALJ provided specific reasons
for his credibility determination, including Ms. Brown’s vague, unresponsive
testimony and inconsistencies in her statements to treating and examining doctors.
See ER 09a, 104a; see also Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir.
2008) (an ALJ may base an adverse credibility determination on “ordinary
techniques of credibility evaluation,” “unexplained or inadequately explained
failure to seek treatment or to follow a prescribed course of treatment,” and “the
claimant’s daily activities”) (quoting Smolen, 80 F.3d at 1284). We conclude that
the ALJ’s credibility determination was supported by substantial evidence. See
Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (upholding an adverse
credibility finding in part due to a claimant’s inconsistent statements to her
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doctors).
The ALJ did not err in his consideration of the third party report filed by Ms.
Brown’s sister, Cornelia Williams. “While an ALJ must take into account lay
witness testimony about a claimant’s symptoms, the ALJ may discount that
testimony by providing ‘reasons that are germane to each witness.’” Greger v.
Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (quoting Dodrill v. Shalala, 12 F.3d
915, 919 (9th Cir. 1993)). Here, the ALJ stated specifically that he considered Ms.
Williams’s report, but that he did not accept her contentions to the extent that they
contradicted objective evidence in the record. ER 104a. The ALJ noted further
that her statements did not establish a complete inability to work. We conclude
that the ALJ properly weighed Ms. Williams’s report in light of the evidence in the
record. See Bayliss, 427 F.3d at 1218 (noting that “[i]nconsistency with medical
evidence” is one “germane” reason for rejecting lay witness testimony).
Finally, the ALJ did not err in concluding that Ms. Brown has the residual
functional capacity to work. A determination of residual functional capacity “is an
assessment of an individual’s ability to do sustained work-related physical and
mental activities in a work setting on a regular and continuing basis.” Soc. Sec.
Ruling 96-8p, available at http://www.ssa.gov/OP_Home/rulings/di/01/SSR96-08-
di-01.html; see 20 C.F.R. § 416.945 (defining residual functional capacity as “the
5
most you can still do despite your limitations”); see also Reddick v. Chater, 157
F.3d 715, 724 (9th Cir. 1998).
In making his determination, the ALJ properly weighed the medical
evidence available to him. The ALJ was required to weigh and evaluate the
medical evidence in the record, but not to accept all or none of an expert witness’s
opinion. See Magallanes, 881 F.2d at 753. While the treating physician’s opinion
is typically accorded controlling weight if it is uncontradicted, see Holohan v.
Massanari, 246 F.3d 1195, 1202-03 (9th Cir. 2001), in this case, there was
substantial conflicting evidence in the record supplied by other medical opinions.
ER 99a-103a. Moreover, the ALJ can reject a treating physician’s opinion if it is
“brief, conclusory, and inadequately supported by clinical findings.” Thomas v.
Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (citations omitted). Here, we agree
with the district court and the ALJ that the treating physician’s opinion failed to
“identify objective medical evidence on which it is based.” ER 07a. Therefore, the
ALJ did not err in relying on the opinions of other physicians and objective
medical evidence in concluding that Ms. Brown could perform certain kinds of
work and might have been malingering with respect to at least some of her
symptoms. See Thomas, 278 F.3d at 957 (“The opinions of non-treating or
non-examining physicians may [] serve as substantial evidence when the opinions
6
are consistent with independent clinical findings or other evidence in the record.”).
In light of the evidence in the record, the ALJ’s findings were supported by
substantial evidence. Reasonable people could disagree about Ms. Brown’s
disability status based on this record. However, “[w]hen evidence reasonably
supports either confirming or reversing the ALJ’s decision, we may not substitute
our judgment for that of the ALJ.” Batson v. Comm’r of Soc. Sec. Admin., 359
F.3d 1190, 1196 (9th Cir. 2004) (citations omitted). Therefore, we are obliged to
follow the ALJ’s determination.
AFFIRMED.
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