FILED
NOT FOR PUBLICATION
MAR 23 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
REXFORD J. ROTHERY, No. 15-15775
Plaintiff-Appellant, D.C. No. 2:13-cv-02489-ESW
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Eileen S. Willett, Magistrate Judge, Presiding
Submitted March 16, 2017**
San Francisco, California
Before: TALLMAN and WATFORD, Circuit Judges, and GUIROLA,*** Chief
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Louis Guirola, Jr., Chief United States District Judge
for the Southern District of Mississippi, sitting by designation.
Page 2 of 3
1. Substantial evidence supports the administrative law judge’s finding that
Rexford Rothery’s testimony was not credible. Rothery admitted that he was
working as a swimming pool cleaner during the period in which he claimed to be
disabled; that he failed to report his income to tax authorities; and that he
repeatedly drove using a suspended driver’s license. The ALJ properly considered
these facts as evidence undermining Rothery’s general reputation for truthfulness.
See Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). In addition,
inconsistencies between Rothery’s statements and other evidence in the record
suggested that Rothery was exaggerating his symptoms. For example, the U.S.
Office of the Inspector General’s Cooperative Disability Investigations Unit found
that Rothery shopped more frequently than he reported in his disability application
and that his observed demeanor was inconsistent with someone suffering from
Rothery’s claimed symptoms. Finally, Dr. Worsley, an examining psychiatrist,
opined that Rothery’s symptoms were not as severe as he alleged. The ALJ
properly considered all of this evidence in making an adverse credibility
determination. See 20 C.F.R. § 404.1529(c)(4).
2. Substantial evidence also supports the ALJ’s decision to assign little
weight to the medical opinion of Dr. Gilbert, Rothery’s treating psychiatrist. As
indicated above, the ALJ properly determined that Rothery’s self-reported
Page 3 of 3
symptoms were not credible; by extension, his decision to give little weight to Dr.
Gilbert’s opinion because it relied on Rothery’s self-reported symptoms was not
improper. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). In
addition, as noted by the ALJ, Rothery’s continued employment during the claimed
disability period indicates that he had sufficient functioning for employment during
that time frame. These were sufficiently specific and legitimate reasons for
assigning little weight to Dr. Gilbert’s opinion. See Garrison v. Colvin, 759 F.3d
995, 1012 (9th Cir. 2014).
AFFIRMED.