                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            JAN 04 2017
                     UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


GLEN R. WITHROW,                                 No. 15-55197

               Plaintiff - Appellant,            D.C. No. 8:13-cv-01959-AS

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

               Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     Alka Sagar, Magistrate Judge, Presiding

                           Submitted December 30, 2016**

Before:        PREGERSON, LEAVY, and OWENS, Circuit Judges.

      Glen R. Withrow appeals the district court’s judgment affirming the

Commissioner of Social Security’s denial of his application for supplemental

security income under Title XVI of the Social Security Act. We have jurisdiction


          *
             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).
under 28 U.S.C. § 1291. We review de novo, Molina v. Astrue, 674 F.3d 1104,

1110 (9th Cir. 2012), and we affirm.

      Withrow contends that the administrative law judge (ALJ) erred by rejecting

Dr. Piasecki’s opinion recommending that Withrow have the option of standing

and sitting at will. We reject Withrow’s contention because the ALJ specifically

indicated that Dr. Piasecki’s opinion was accorded partial weight and included the

standing and sitting at will option in the residual functional capacity (RFC)

determination. Dr. Piasecki’s heavy lifting limitation, moreover, was included in

the ALJ’s hypothetical to the vocational expert.

      The ALJ provided specific and legitimate reasons for giving little weight to

the opinions of physicians Drs. Baird and Chung regarding Withrow’s standing

and walking limitations. As to Dr. Baird’s opinion, the ALJ reasonably determined

that this opinion was contradicted by the evidence in the record and by Withrow’s

own statements. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164

(9th Cir. 2008) (holding that if a treating physician’s opinion is contradicted by

other evidence, the ALJ must provide specific and legitimate reasons supported by

substantial evidence in the record for rejecting the opinion); Bray v. Comm’r Soc.

Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (stating that if the ALJ

determines that the subjective complaints of the claimant are not credible, this is a


                                           2
sufficient reason for discounting a physician’s opinion upon which the complaints

are based).

      As to Dr. Chung’s opinion, the ALJ reasonably determined that Withrow’s

statements describing his activities of daily living indicated that Withrow was able

to stand and walk to a greater extent than Dr. Chung generally outlined. See

Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (stating that an

inconsistency between a treating physician’s opinion and a claimant’s daily

activities is a specific and legitimate reason to discount the treating physician’s

opinion).

      The ALJ’s hypothetical to the vocational expert presented all the

limitations that were supported by the record. The hypothetical included the

existence of moderate mental impairments that could be controlled by appropriate

medication. Given the sparse medical record, the ALJ did not err by not including

the existence of uncontrolled impairments in his hypothetical to the vocational

expert. See Osenbrock v. Apfel, 240 F.3d 1157, 1163-64 (9th Cir. 2001) (holding

that an ALJ’s hypothetical need not include properly rejected limitations).

Moreover, the vocational expert was later presented with an additional hypothetical

that included consideration of moderate and controlled limitations. In response,




                                           3
the vocational expert testified that such a person would still be able to perform the

unskilled work already identified.

      Finally, Withrow’s contention that the vocational expert’s testimony

deviates from agency policy lacks merit. Withrow points to no actual conflict

between agency policy and the vocational expert’s testimony that a claimant with

moderate mental limitations can perform unskilled work. Moreover, this court has

upheld determinations that claimants with moderate mental limitations are capable

of doing simple unskilled work. See Valentine v. Comm’r Soc. Sec. Admin., 574

F.3d 685, 690 (9th Cir. 2009) (upholding a denial of benefits where the ALJ found

that a claimant with “moderate restrictions of his capacity to concentrate, interact

with the public, and carry out detailed work instructions” was not disabled);

Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173-74 (9th Cir. 2008) (the ALJ’s

finding of moderate mental limitations was consistent with an RFC for simple,

routine, and repetitive work). Withrow’s reliance on the Program Operations

Manual System (POMS) is misplaced, because POMS “does not impose judicially

enforced duties on either this court or the ALJ.” Lockwood v. Comm'r Soc. Sec.

Admin., 616 F.3d 1068, 1073 (9th Cir. 2010).

      AFFIRMED.




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