NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 18 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTINE HELEN DECARLO, No. 19-56178
Plaintiff-Appellant, D.C. No. 2:18-cv-08126-AFM
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Alexander F. MacKinnon, Magistrate Judge, Presiding**
Submitted February 12, 2021***
Pasadena, California
Before: TALLMAN, CALLAHAN, and LEE, Circuit Judges.
Christine Helen Decarlo appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of her applications for disability
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The parties consented to proceed before a magistrate judge.
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
insurance benefits and supplemental security income under Titles II and XVI of the
Social Security Act. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm.
We review de novo the district court’s order affirming the ALJ’s denial of
Social Security benefits, and we must independently determine whether the ALJ’s
decision is free from legal error and supported by substantial evidence. Brewes v.
Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). “If the
evidence can support either affirming or reversing the ALJ’s conclusion, we may
not substitute our judgment for that of the ALJ.” Robbins v. Soc. Sec. Admin., 466
F.3d 880, 882 (9th Cir. 2006) (citation omitted).
First, Decarlo contends the ALJ erred in giving too little weight to the
opinions of her treating physicians Drs. Zein and Kakoyannis. An ALJ may reject
a treating doctor’s contradicted opinion “by providing specific and legitimate
reasons that are supported by substantial evidence,” which can be done by “setting
out a detailed and thorough summary of the facts and conflicting clinical evidence,
stating [the ALJ’s] interpretation thereof, and making findings.” Revels v.
Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (citations omitted). Here, the ALJ
found that Dr. Zein’s cursory statements dated December 22, 2014, and December
8, 2015, and Dr. Kakoyannis’s brief statement dated December 1, 2016, were
unaccompanied by clinical support other than the diagnosis of interstitial cystitis
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itself and did not provide a functional assessment. These are specific and
legitimate reasons to discount a treating physician’s opinion. See Ford v. Saul, 950
F.3d 1141, 1154–55 (9th Cir. 2020) (“The ALJ need not accept the opinion of any
physician, including a treating physician, if that opinion is brief, conclusory, and
inadequately supported by clinical findings.” (citation omitted)).
Dr. Zein’s October 23, 2015, Residual Functional Capacity (“RFC”)
checklist indicated that Decarlo was incapable of even “low stress” jobs because
her pain was “unabated.” The ALJ found that this statement was inconsistent
“with clinical records of the claimant denying pain, incontinence, urgency, and
frequency.” A conflict between a treating physician’s medical opinion and his own
notes “is a clear and convincing reason for not relying on the doctor’s opinion, and
therefore is also a specific and legitimate reason for rejecting it.” Id. at 1154
(internal quotation marks and citation omitted). Decarlo urges the Court to adopt a
different interpretation of the evidence, but the ALJ’s finding is supported by
substantial evidence. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).
Second, Decarlo contends the ALJ erred in according too much weight to the
opinion of examining physician Dr. Gerber, and failed to include Dr. Gerber’s
assessment regarding Decarlo’s need for ready access to restroom facilities in his
RFC finding. The ALJ found that Dr. Gerber’s assessment “was supported by his
generally benign and unremarkable examination findings” as well as Decarlo’s
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“reported ability to perform daily activities.” Dr. Gerber’s opinion constituted
substantial evidence supporting the ALJ’s decision because “it rests on his own
independent examination of” Decarlo. Tonapetyan v. Halter, 242 F.3d 1144, 1149
(9th Cir. 2001). And it is clear from the record that the ALJ considered Dr.
Gerber’s assessment regarding restroom access and factored it into the additional
protective limitations he included in the RFC finding, which contemplates access
to the restroom five times throughout the day when needed to accommodate
Decarlo’s urinary frequency.
Third, Decarlo contends the ALJ improperly discredited her symptom
testimony. The ALJ reasonably relied on the lack of objective medical evidence in
the record and Decarlo’s ability to complete a five-month contract for full-time
work during the alleged period of disability to find Decarlo’s symptom allegations
were not entirely credible. Together, these constitute clear and convincing reasons
to discount her testimony. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d
1219, 1227 (9th Cir. 2009) (affirming ALJ’s credibility determination based in part
on fact that claimant had recently worked and was seeking other work); Burch v.
Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (lack of medical evidence is a factor
the ALJ can consider in assessing the credibility of pain testimony). Again,
although Decarlo urges the Court to adopt a different interpretation of the
evidence, the ALJ’s credibility finding is supported by substantial evidence. See
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Orn, 495 F.3d at 630 (ALJ’s decision should be upheld where the evidence is
susceptible to more than one rational interpretation).
Because Decarlo fails to identify harmful error in the ALJ’s formulation of
her residual functional capacity, we need not separately address at length Decarlo’s
remaining argument that the ALJ erred at step four by concluding she could
perform her past relevant work. See Stubbs-Danielson v. Astrue, 539 F.3d 1169,
1175–76 (9th Cir. 2008). Substantial evidence supports the ALJ’s RFC finding as
well as the ALJ’s step four conclusion that relied on the RFC finding.
AFFIRMED.
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