                                                                              FILED
                            NOT FOR PUBLICATION                               MAR 24 2010

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



                            FOR THE NINTH CIRCUIT


HENRY H. MENDOZA,                                No. 08-17027

             Plaintiff - Appellant,              D.C. No. 2:07-cv-01425-JAT

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

             Defendant - Appellee.


                     Appeal from the United States District Court
                              for the District of Arizona
                     James A. Teilborg, District Judge, Presiding

                       Argued and Submitted January 14, 2010
                             San Francisco, California

Before: KOZINSKI, Chief Judge, WALLACE and CLIFTON, Circuit Judges.

       We review de novo a district court’s judgment upholding the denial of social

security benefits. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). We

affirm and remand.




        *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                           I.

      Mendoza challenges the Administrative Law Judge’s (ALJ) conclusion that

Mendoza’s testimony about “the intensity, persistence and limiting effects of” his

symptoms was not fully credible. The ALJ gave specific, clear and convincing

reasons why she believed Mendoza’s asthma symptoms were not as severe as he

claimed, thereby justifying her finding that his symptom testimony was not fully

credible. See Lingenfelter, 504 F.3d at 1035-36. She did this by pointing to the

following facts: 1) Mendoza’s admission that he slept when he lay down for four to

five hours a day, which could suggest that his inactivity was voluntary and not due,

as he claimed, to asthma-related respiratory distress; 2) his “spotty” earnings

history even prior to the onset of his alleged disability – as the district court

observed, he apparently worked about half the time between 1990 and 2001; 3) his

ability to travel to California for three weeks in 2005, and his daily activities –

which included driving three times a week to the grocery store, washing dishes,

and light housework – all of which could be viewed as inconsistent with his

testimony that he had to lie down for much of the day; and 4) the overall medical

record, including a March 2004 “borderline normal” pulmonary test result and

evidence that Mendoza’s asthma improved with bronchodilators and medication.

The ALJ also stated there was no evidence of “deconditioning or atrophy” to

support Mendoza’s claim that he is prone for four to five hours a day. We

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conclude that the ALJ’s reasons, taken together, satisfy the “specific, clear and

convincing” standard and justify the ALJ’s finding that Mendoza’s symptom

testimony was not fully credible.

                                         II.

      Mendoza argues that the residual functional capacity (RFC) ruling should

not have relied on assessments from two non-examining, non-testifying doctors.

The ALJ’s opinion stated she “basically accepts the conclusions by the State

agency physicians” as to Mendoza’s limitations on work, and the ALJ’s RFC

finding was a combination of the limitations listed in the two assessments by those

state agency physicians, one from February 2005.

      Mendoza argues that the 2004 assessment deserved little weight because it

relied on another exhibit to which the ALJ assigned little weight. The 2004

assessment cited the “CE MSS,” an apparent reference to the consultative

examination medical source statement of Dr. Cunningham, to which the ALJ gave

little weight because Dr. Cunningham did not examine certain background data.

Thus, Mendoza argues, the ALJ’s reliance on the 2004 assessment was improper

because it relied on Dr. Cunningham’s report, which the ALJ found unpersuasive.

Not so. Although the 2004 assessment ultimately reached the same conclusion Dr.

Cunningham did, the notes accompanying the 2004 assessment show that the state

agency physician reviewed other parts of Mendoza’s medical record besides Dr.


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Cunningham’s report. Also, the ALJ did not uncritically adopt the 2004

assessment wholesale; rather, she examined the whole record and ultimately made

an RFC finding that combined aspects of both the 2004 and 2005 state agency

physician assessments. Indeed, she ultimately found Mendoza capable of less

strenuous work than the 2004 assessment and Dr. Cunningham suggested.

      Mendoza further argues that an ALJ may rely on a non-examining physician

opinion only if the physician testified and was subject to cross-examination at the

hearing. But in this circuit, “opinions of non-treating or non-examining physicians

may also serve as substantial evidence when the opinions are consistent with

independent clinical findings or other evidence in the record.” Thomas v.

Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). The ALJ cited several medical

sources, including Mendoza’s records reflecting the care he received at Cigna,

Pulmonary Associates, and the Maricopa pulmonary clinic. The ALJ had the

difficult task of reconciling medical evidence from treating, examining and non-

examining doctors who reached a variety of conclusions about Mendoza, and none

of those doctors testified at the hearing. We hold she did not err in reaching a

conclusion reflecting a combination of the limitations found by two non-examining

doctors.




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                                        III.

      Finally, Mendoza argues that the ALJ should have credited the opinion of

Dr. Rafique, who opined that Mendoza could not do even sedentary work. This is

incorrect; an ALJ may reject an opinion of an examining physician, if contradicted

by a non-examining physician, as long as the ALJ gives “specific and legitimate

reasons that are supported by substantial evidence in the record.” Moore v.

Comm’r, 278 F.3d 920, 924 (9th Cir. 2002), citing Lester v. Chater, 81 F.3d 821,

830-31 (9th Cir. 1995). The ALJ’s reasons for rejecting Dr. Rafique’s opinion

meet that standard. She found that Dr. Rafique’s opinion conflicted with his own

observations about Mendoza’s mobility during the examination, and was

inconsistent with the record as a whole. Relying on observations and test results

from treating physicians as well as reports from non-examining state agency

physicians, the ALJ determined that the evidence overall did not support a finding

that Mendoza was incapable of sedentary work. The ALJ permissibly rejected a

medical opinion of a non-treating examining physician that was unsupported by the

record as a whole. See Batson v. Comm’r, 359 F.3d 1190, 1195 (9th Cir. 2004).

      The district court remanded the case for further proceedings on the ground

that the ALJ erred by not providing the vocational expert who testified at the

hearing with a hypothetical question regarding a person who had all of Mendoza’s

limitations. The Commissioner did not appeal that portion of the district court’s

                                         5
decision, so we remand to the Commissioner for further proceedings consistent

with the district court’s remand and this decision.

      AFFIRMED and REMANDED.




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