                                                                            FILED
                            NOT FOR PUBLICATION                              JUL 06 2010

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




                            FOR THE NINTH CIRCUIT



KIMBER TAYLOR,                                   No. 09-35510

              Plaintiff - Appellant,             D.C. No. 6:08-cv-00230-AA

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

              Defendant - Appellee.



                   Appeal from the United States District Court
                            for the District of Oregon
                   Ann L. Aiken, Chief District Judge, Presiding

                        Argued and Submitted June 7, 2010
                                Portland, Oregon

Before: HALL, FERNANDEZ, and McKEOWN, Circuit Judges.

       Kimber Taylor (“Taylor”) appeals from a judgment of the district court

affirming a decision of the Commissioner of Social Security (“Commissioner”)

denying her application for Supplemental Security Income (“SSI”) disability

benefits pursuant to Title XVI of the Social Security Act (“the Act”).


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The district court had jurisdiction pursuant to 42 U.S.C. § 405(g). We have

jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

                                                I.

      Because the parties are familiar with the factual and procedural history of

this case, we will not recount it here except as necessary to our disposition of the

claims of error raised on appeal.

                                          II.

      Taylor raises numerous claims of error as to the Commissioner’s findings at

Steps Two, Three, and Five of the five-step sequential evaluation process that she

is not “disabled” within the meaning of the Act.1 The final decision of the

Commissioner (here, that of the ALJ) must be affirmed if it is supported by

substantial evidence and the correct legal standards were applied. See Batson v.

Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).

                                          A.

      At Step Two, the ALJ was required to determine whether Taylor has a

medically determinable impairment or combination of impairments that is



      1
        Although the ALJ also found at Step Four that Taylor has the residual
functional capacity (“RFC”) to perform her “past relevant work” as a mail sorter,
the Commissioner concedes that finding was not supported by substantial
evidence.

                                          -2-
“severe.” 20 C.F.R. § 416.920(c). An impairment is not “severe” if it does not

significantly limit her ability to do basic work activities. Id., § 416.921(a).

      The Commissioner does not dispute that Taylor has medically determinable

mental impairments, as confirmed by two non-treating Disability Determination

Services (“DDS”) psychologists, who opined—in substantial agreement with her

primary treating physician and a consulting psychologist who examined her—that

she suffers from depressive and anxiety disorders. The Commissioner contends,

however, that substantial credible evidence supports the ALJ’s finding at Step Two

of only “non-severe” impairments. We agree.

      In particular, a body of largely undisputed evidence supports the finding that

Taylor’s mental impairments respond well to treatment with anti-depressant and

anti-anxiety medications, and medication used to treat attention deficit disorders,

so long as she complies with her treatment plan. “Impairments that can be

controlled effectively with medication are not disabling for the purpose of

determining eligibility for SSI benefits.” Warre v. Comm’r of Soc. Sec. Admin.,

439 F.3d 1001, 1006 (9th Cir. 2006).

       There is also substantial evidence from a variety of sources—including the

DDS psychologists’ opinions that her mental impairments result in no more than

“mild” functional limitations when the effects of drug and alcohol abuse are


                                           -3-
excluded, Taylor’s own and her friend’s reports of her daily activities since her

alleged date of onset, and records of the Oregon Vocational Rehabilitation Division

(“VRD”)—that directly supports the ALJ’s finding that Taylor’s impairments are

not “severe.” In addition, there is substantial evidence that Taylor and her care-

giver have exaggerated the extent to which her mental impairments limit her ability

to work, and the assessments of the severity of her mental impairments from her

treating physician and the examining psychologist are based primarily on her

discredited self-reporting. The ALJ properly rejected the latter opinions by

providing specific, legitimate reasons for doing so that were supported by

substantial evidence. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).

                                           B.

      At Step Three, the ALJ was required to determine whether Taylor has any

impairment or combination of impairments that meets or equals those impairments

listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. In evaluating whether Taylor

has such a “listed” disabling condition, the ALJ was required to consider whether

her mental impairments meet the so-called “B criteria”: (1) marked restriction of

activities of daily living; (2) marked difficulties in maintaining social functioning;

(3) marked difficulties in maintaining concentration, persistence, or pace; or (4)

repeated episodes of decompensation. Id., § 12.00(C). If Taylor’s impairments


                                          -4-
meet the B criteria, the ALJ was required to find her disabled. 20 C.F.R. §

416.920(a)(4)(iii); 20 C.F.R. pt. 404, subpt. P, app. 1 §§ 12.04 (affective

disorders), 12.06 (anxiety disorders).

      Taylor does not suggest that she meets the fourth B criterion, as there is no

evidence of any episode of “decompensation” in this record. She contends,

however, that she is seriously limited in her ability to function independently,

appropriately, effectively, and on a sustained basis in the other three areas. The

credible evidence in the record does not support Taylor on this point.

      As noted, the DDS psychologists opined that, excluding any effects of

alcoholism or drug addiction, which Taylor agrees should not be considered, she

has only “mild” restriction of activities of daily living, and “mild” difficulties in

maintaining social functioning, concentration, persistence, and pace. Based on this

evidence alone, the ALJ properly could find that Taylor does not have any listed

impairment. But the ALJ’s determination is also supported by medical records

showing improvement in her conditions with treatment that began in 2003, lay

evidence of her activities of daily living and social functioning since her alleged

date of onset, and VRD records.

                                           C.

      Taylor further contends that the ALJ abused his discretion by denying her


                                           -5-
request for a second consultative examination to obtain neuro-psychological

testing. We disagree. The Social Security Administration (“SSA”) has broad

latitude in ordering consultative examinations. Reed v. Massanari, 270 F.3d 838,

842 (9th Cir. 2001). The SSA may purchase a consultative examination when the

evidence as a whole is not sufficient to support a decision on a claim. 20 C.F.R. §

416.919a(b). In this case, however, the ALJ did not find the evidence insufficient

to support his decision. Rather, in finding that Taylor was not disabled at Steps

Two and Three, the ALJ found dispositive a body of largely undisputed evidence

showing that Taylor experienced notable improvement in her mental health status

and functioning throughout the period from the date of onset to the date of

decision, as a result of medications prescribed by her treating physician and other

treatment she received at his clinic. See Warre, 439 F.3d at 1006. Thus, the ALJ

did not err in declining to order a second consultative examination.

                                         D.

      At Step Five, the ALJ was required to determine whether, considering her

RFC, age, education, and work experience, Taylor is able to perform any work that

exists in significant numbers in the national economy. RFC is the ability to

perform physical and mental work activities on a sustained basis despite limitations

from all of her impairments, whether severe or non-severe. 20 C.F.R.


                                         -6-
§ 416.920(e); id., § 416.945(a). It is SSA’s burden at Step Five to provide

evidence demonstrating that other work exists in significant numbers in the

national economy that Taylor can do. 20 C.F.R. § 416.912(g); id., § 416.960(c).

      The ALJ’s alternative finding at Step Five was supported by substantial

evidence. Medical records documenting Taylor’s improved mental status and

functioning while taking prescribed medications, a statement from her friend

regarding her daily activities and relationships with other friends and neighbors,

and the testimony of a vocational expert (“VE”), support the ALJ’s findings that

Taylor has the RFC to perform simple, routine tasks requiring only light to

medium exertion, and that she can perform jobs that exist in significant numbers in

Oregon and in the national economy, including mail sorter, laundry worker, and

food sorter. Conflicting evidence from her care-giver and two former employers

does not negate the ALJ’s finding at Step Five, and the ALJ could properly reject

the reports and opinions of the treating physician and examining psychologist

about her functional limitations, as they were based primarily on Taylor’s

discredited self-reports. See Batson, 359 F.3d at 1197.

                                        IV.

      For all of these reasons, the district court judgment upholding the

Commissioner’s denial of SSI disability benefits is AFFIRMED.


                                         -7-
