                                                                           FILED
                           NOT FOR PUBLICATION                             OCT 10 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


MICHELLE GARCIA,                                 No. 12-16911

              Plaintiff - Appellant,             D.C. No. 2:10-cv-03164-KJN

  v.
                                                 MEMORANDUM*
COMMISSIONER OF SOCIAL
SECURITY,

              Defendant - Appellee.


                   Appeal from the United States District Court
                       for the Eastern District of California
                  Kendall J. Newman, Magistrate Judge, Presiding

                            Submitted October 8, 2014**
                             San Francisco, California

Before: W. FLETCHER and WATFORD, Circuit Judges, and DUFFY, Senior
District Judge.***




        *
             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).
        ***
              The Honorable Kevin Thomas Duffy, Senior District Judge for the
U.S. District Court for the Southern District of New York, sitting by designation.
                                                                           Page 2 of 5
      1. Michelle Garcia’s objections to the ALJ’s treatment of conflicting

medical testimony do not provide a basis for reversal. The ALJ rejected the

opinion of Garcia’s treating psychologist, Dr. William Taetzsch—the only medical

expert to conclude Garcia was entirely unfit for work—as an outlier “so extreme as

to appear implausible.” Ordinarily, a treating physician’s opinion outweighs a

non-treating physician’s opinion. See Lester v. Chater, 81 F.3d 821, 830–31 (9th

Cir. 1996). But in this case, the ALJ rejected Dr. Taetzsch’s opinion in favor of the

examining physicians’ opinions for “specific and legitimate” reasons supported by

substantial evidence. Id. at 830. The ALJ fairly decided that Dr. Taetzsch’s

conclusory determinations that Garcia had, for instance, poor or no ability to deal

with work stresses and to perform work activities, are unsupported by Dr.

Taetzsch’s own notes, which almost exclusively concern Garcia’s relationship with

her son and her physical health and provide almost no analysis. The ALJ

reasonably gave controlling weight to the three other independent medical

opinions, because they were consonant with Garcia’s broader medical history.

Nothing in that history suggests Garcia cannot sit, stand, or lift light weights

throughout a workday. Indeed, the ALJ noted that her “limping gait” on the way

into the exam room, which would have corroborated her claims, disappeared in the

parking lot when she no longer thought she was being observed.
                                                                          Page 3 of 5
      2. Substantial evidence also supports the ALJ’s decision to give little weight

to Garcia’s testimony in assessing her residual functional capacity to perform light

work. The ALJ properly relied on “ordinary techniques of credibility evaluation,”

including inconsistencies across statements, inconsistencies between statements

and conduct, inadequately explained failure to follow prescribed courses of

treatment, and daily activities at odds with alleged symptoms. See Molina v.

Astrue, 674 F.3d 1104, 1112–13 (9th Cir. 2012). The ALJ found Garcia’s

testimony that she is dependent on the services of others and unable to do anything

but sleep and watch television to be inconsistent with many of her earlier

statements suggesting that she was relatively independent. The ALJ further noted

that Garcia underwent a battery of diagnostic tests for her allegedly debilitating

musculoskeletal pain that yielded few objective findings, and that she proved

consistently uncooperative with medical professionals and unwilling to comply

with prescribed treatments, even when they were effective. Quoting Dr. Taetzsch’s

opinion, Garcia suggests that her lack of effort during examinations is a product of

her depression and chronic pain, but, as we have already noted, the ALJ found that

Dr. Taetzsch’s opinion relied on few or no objective clinical findings.

      The ALJ’s reasons for discrediting Garcia’s subjective pain and symptom

testimony are clear and convincing. See Lingenfelter v. Astrue, 504 F.3d 1028,
                                                                           Page 4 of 5
1036–37 (9th Cir. 2007). As a result, we may not second-guess the ALJ’s

credibility determinations. Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989).

      3. Garcia claims it was reversible error for the ALJ not to identify her

depression as “severe” at step two in the sequential evaluation of disability. This

claim amounts to a restatement of Garcia’s argument regarding the ALJ’s treatment

of conflicting mental health testimony. Garcia contends that the ALJ’s alleged

error at step two “could change the outcome of the case” because Dr. Taetzsch’s

opinion stated that her depression and pain made her emotionally fragile and

unpredictable and severely impaired her ability to adjust to the workplace. We

have noted that the ALJ reasonably discounted Dr. Taetzsch’s opinion. But even if

the ALJ did err in failing to identify Garcia’s depression as “severe” at step two,

that error was harmless. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007).

Garcia prevailed at step two, and the ALJ proceeded through the entire sequential

analysis, carefully considering all of Garcia’s mental health records in assessing

her residual functional capacity.

      4. Garcia also claims that the ALJ erred in his residual functional capacity

assessment by failing to consider all of her functional limitations and the effect of

certain limitations on the occupational base for light work. Substantial evidence

supports the ALJ’s residual functional capacity assessment. The ALJ weighed
                                                                          Page 5 of 5
Garcia’s entire medical history and the credible opinions of examining and treating

physicians to find Garcia capable of a wide range of light work. The ALJ

concluded that her mental and physical limitations, including her limited capacity

to work with others and to work amid fumes and dust, did not significantly erode

the base of unskilled light work with limited or no public contact for which Garcia

was otherwise qualified. Such light work generally requires interaction with

objects rather than people, and most work environments lack the fumes and dust

that would exacerbate Garcia’s pulmonary deficiencies. See SSR 85-15, 1985 WL

56857, at *4, *8.

      5. The ALJ properly declined to call a vocational expert, as Garcia’s non-

exertional limitations were insufficiently severe to render the grids inapplicable.

See Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007). In Hoopai, the ALJ

determined, without consulting a vocational expert, that a severe combination of

low back pain and moderate depression did not render Hoopai ineligible to perform

a wide range of light work. Id. at 1076–77. The ALJ reached the same conclusion

about Garcia in this case. Therefore, even if this case were distinguishable from

Hoopai, as Garcia urges, because the ALJ did not explicitly identify depression at

step two, Hoopai would not command a different result.

      AFFIRMED.
