                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           OCT 27 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
JENNIFER A. GATES,                               No. 13-55214

              Plaintiff - Appellant,             D.C. No. 2:12-cv-00804-FFM

 v.
                                                 MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,

              Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                    Frederick Mumm, District Judge, Presiding

                           Submitted October 20, 2015**
                               Pasadena, California

Before: IKUTA and OWENS, Circuit Judges, and SESSIONS,*** 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 William K. Sessions III, District Judge for the U.S.
District Court for the District of Vermont, sitting by designation.
       Plaintiff Jennifer Gates appeals from the district court’s judgment reversing

in part the Commissioner of the Social Security Administration’s denial of

benefits. The district court affirmed the ruling of the Administrative Law Judge

(ALJ) in part, and remanded a portion of Gates’s claim for further proceedings.

Gates appeals the district court’s decision affirming the ALJ. Having jurisdiction

under 28 U.S.C. § 1291, we review de novo, Treichler v. Comm’r of Soc. Sec.

Admin., 775 F.3d 1090, 1098 (9th Cir. 2014), and affirm.

       Gates alleges disability due to, among other things, fibromyalgia and

depression. The ALJ denied her claim for supplemental security income, and

Gates sought judicial review in the district court. The district court remanded for

further consideration of an examining psychologist’s findings, but declined to

remand with regard to the conclusions of a rheumatologist, Dr. Franklin Kozin.

Dr. Kozin’s opinions were largely based upon Gates’s self-reporting, and the ALJ

concluded that Gates was not credible. Gates appeals this latter portion of the

district court’s ruling.

       The district court concluded that in the proceedings before it, Gates had not

challenged the ALJ’s credibility determination. The district court further found

that the credibility determination supported the ALJ’s rejection of Dr. Kozin’s

findings. On appeal, the Commissioner argues that because the credibility issue


                                          2
was not raised before the district court, it has been waived.

      While Gates concedes that her argument before the district court was

“inartful,” she submits that the issue is not waived. Even assuming Gates

sufficiently raised the issue to the district court, the ALJ gave specific, cogent

reasons for his adverse credibility determination. The ALJ determined that Gates’s

lack of muscle atrophy was incompatible with her claimed level of inactivity, and

thus her “subjective complaints and alleged limitations are out of proportion to the

objective findings,” given that Dr. Taylor’s assessment of Gates’s lack of muscle

atrophy directly contradicted her assertion of how much she moved on a daily

basis. Therefore, to the extent any limitations identified by Dr. Kozin were based

on Gates’s subjective complaints, the ALJ did not err in rejecting them. See

Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005).

AFFIRMED.




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