Reese Hughes v. Michael Astrue

FILED
NOT FOR PUBLICATION DEC 11 2009

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

REESE P. HUGHES, No. 09-35032

Plaintiff - Appellant, D.C. No. 2:08-cv-00077-JPH

v.
MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
Social Security,

Defendant - Appellee.

Appeal from the United States District Court
for the Eastern District of Washington
James P. Hutton, Magistrate Judge, Presiding

Submitted December 9, 2009 **
Seattle, Washington

Before: BEEZER, GOULD, and TALLMAN, Circuit Judges.

Reese Hughes appeals the district court’s judgment affirming the

Commissioner of Social Security’s final decision to deny his application for

Disability Insurance Benefits and Supplemental Security Income under Titles II

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
and XVI of the Social Security Act. Because the parties are familiar with the facts

and procedural history of this case, we will discuss them only as necessary to

explain our decision. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm the judgment of the district court.

We may set aside the Administrative Law Judge’s (“ALJ”) decision only

when the decision is not supported by substantial evidence or is premised on legal

error. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). The ALJ

found that, without Hughes’s drug and alcohol abuse, Hughes retained the residual

functional capacity (“RFC”) to perform a modified range of light work. At step

five, the ALJ determined that, while Hughes could not perform his past relevant

work, he could perform other jobs existing in significant numbers in the national

economy. Hughes argues that (1) the ALJ impermissibly rejected opinion

testimony, (2) the hypothetical posed to the vocational expert failed to consider the

totality of Hughes’s limitations, and (3) substantial evidence does not support the

ALJ’s determination.

First, after finding Hughes not entirely credible, the ALJ properly rejected

opinion testimony based on Hughes’s own self-reports. Hughes did not challenge

the ALJ’s credibility finding in the district court, and therefore any challenge to

that finding is waived on appeal. Edlund v. Massanari, 253 F.3d 1152, 1158 (9th

2
Cir. 2001). The ALJ also resolved inconsistencies between conflicting medical

evidence within the record, and gave clear and legitimate reasons for discounting

or rejecting controverted opinions. The ALJ is responsible for resolving

conflicting or ambiguous testimony, Thomas v. Barnhart, 278 F.3d 947, 956–57

(9th Cir. 2002), and here she fully summarized all medical evidence presented and

gave specific reasons for rejecting portions provided by some of Hughes’s treating

and examining physicians, see Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir.

2008).

Second, the ALJ presented a proper hypothetical to the vocational expert

based on her assessment of Hughes’s functional limitations. Though Hughes

argues for a different reading of the record, we find that the ALJ’s interpretation of

the evidence was rational and should be upheld. Id. at 1038 (“The court will

uphold the ALJ’s conclusion when the evidence is susceptible to more than one

rational interpretation.”). The hypothetical posed to the vocational expert included

all limitations in the RFC determination.

Finally, the ALJ’s findings are supported by substantial evidence. Reports

by Dr. Bailey, Dr. Underwood, and Ms. Sjostrom indicated that Hughes suffered

from depression, anxiety, and personality disorders, as well as substance abuse.

Though these evaluations state that, without substance abuse, Hughes would

3
exhibit only mild limitations, the ALJ found that his psychological impairments

would continue to be severe. While Dr. Platter’s physical RFC assessment finds

Hughes able to perform medium work, after considering Hughes’s obesity and

diabetes, the ALJ found him able to perform only light work. Both of these

findings are more favorable to Hughes than that of the reporting physicians. Based

on Hughes’s RFC, education, work history, and age, along with the assistance of

the vocational expert, the ALJ did not err in finding that Hughes could perform

work existing in significant numbers in the national economy.

AFFIRMED.