                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              MAR 25 2010

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

KRISTINE A. MORILLAS,                            No. 08-17584

             Plaintiff - Appellant,              D.C. No. 3:07-cv-04165-VRW

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

             Defendant - Appellee.


                  Appeal from the United States District Court
                     for the Northern District of California
                Vaughn R. Walker, Chief District Judge, Presiding

                           Submitted March 12, 2010**
                            San Francisco, California

Before: HALL, NOONAN, and CALLAHAN, Circuit Judges.

       Kristine A. Morillas appeals from a district court judgment affirming a final

decision of the Commissioner of Social Security denying her application for

disability insurance benefits and supplemental security income benefits pursuant to

        *
             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).
Titles II and XVI of the Social Security Act. 42 U.S.C. §§ 416(i), 423, and 1381a.

The administrative law judge (“ALJ”) made findings at both Step Four and Step

Five of the five-step sequential process for evaluating whether a claimant is

disabled. 20 C.F.R. § 404.1520(a)(4). The ALJ’s finding at Step Four, that

Morillas has residual functional capacity (“RFC”) to perform her past relevant

work as a bartender or waitress, was rejected by the district court based on the

Commissioner’s concession that it was erroneous. However, the district court

upheld the denial of benefits based on the ALJ’s alternative finding at Step Five

that—notwithstanding the existence of severe, medically determinable impairments

with respect to her back, neck, and knees—Morillas has the RFC to perform

sedentary, semi-skilled jobs existing in significant numbers in the national

economy, including that of “check cashier.” The district court also sustained the

ALJ’s adverse credibility finding as to Morillas’s testimony that she has constant

pain, on a scale of 10, at “level 10” in her back and neck (“10/10” pain), at “level

7” in her knees (“7/10” pain), and at “level 5-7” (“5-7/10” pain) in her hands.

      The district court had jurisdiction pursuant to 42 U.S.C. § 405(g). We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

                                          I.

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


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

claims of error raised on appeal.

                                          II.

      We review de novo a district court judgment affirming a final order of the

Commissioner. Gillett-Netting v. Barnhart, 371 F.3d 593, 595 (9th Cir. 2004). The

Commissioner’s decision must be affirmed if supported by substantial evidence

and the Commissioner applied the correct legal standards. Batson v. Comm’r Soc.

Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). When reviewing factual

findings by the Commissioner, acting through an ALJ, we affirm if substantial

evidence supports the determinations. Celaya v. Halter, 332 F.3d 1177, 1180 (9th

Cir. 2003). In evaluating a claim that an ALJ’s findings are not supported by

substantial evidence, we review the record as a whole and consider adverse as well

as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986).

                                         III.

      Morillas’s principal contention on appeal is that the testimony of the

Vocational Expert (“VE”) was based on flawed hypotheticals that did not take

account of all of her physical limitations—in particular, her alleged carpal tunnel

syndrome (“CTS”) condition, and the side-effects of her pain medications. In

addition, she contends that the ALJ’s adverse credibility determination regarding


                                          3
her subjective pain complaints was based on a misapprehension of her testimony

about her daily activities. Thus, she claims the ALJ’s finding that she has RFC to

perform the sedentary, semi-skilled job of “check cashier” was not supported by

substantial evidence. We will discuss these contentions in reverse order.

                                          A.

      In assessing the credibility of Morillas’s allegedly disabling subjective

symptoms, the ALJ may consider various factors. See 20 C.F.R. §§ 404.1529,

416.929 (2009); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991) (en

banc). Contrary to Morillas’s contentions, the ALJ’s findings on this point are

entitled to deference because they were supported by substantial evidence and were

sufficiently specific to allow this court to conclude that he rejected her testimony

on permissible grounds and did not arbitrarily discredit her testimony about

subjective symptoms. See Bunnell, 947 F.2d at 345-46 (en banc).

      The ALJ provided several valid reasons for rejecting Morillas’s claims of a

disabling level of pain, beginning with his finding that Morillas exaggerated her

claim about constant “10/10” pain in her back and neck. This finding was proper

in view of the nearly complete absence of supporting medical evidence, both in

terms of the lack of objective findings and the lack of documentation of any

complaint to her doctors about such a severe level of pain. See Burch v. Barnhart,


                                          4
400 F.3d 676, 681 (9th Cir. 2005) (lack of medical evidence cannot form the sole

basis for discounting pain testimony, but it is a factor that the ALJ can consider in

his credibility analysis).

      Dr. Sonka-Maarek also testified that she would expect to see much stronger

pain medications and a more aggressive treatment plan than those prescribed for

Morillas if she was actually suffering constant “10/10” back and neck pain. Based

on this evidence, too, the ALJ was justified in inferring that Morillas’s pain claims

were not credible. Id.; Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995)

(unexplained absence of treatment for excessive pain can justify inference of lack

of pain); see also Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (ALJ

properly considered treating doctor’s failure to prescribe, and claimant’s failure to

request, any serious medical treatment for supposedly excruciating pain).

      Finally, while Morillas attempts to minimize her activities of daily

living—which included taking classes to become a medical assistant, driving

herself to school and to do errands, doing daily household chores, and exercising at

a gym—the ALJ properly considered them as part of his overall credibility

assessment, and his assessment of the credibility of her pain claims. Batson, 359

F.3d at 1196 (ALJ properly considered contradictions between the claimant’s

testimony about his activities of daily living and his claims that he could not return


                                          5
to work because of pain); see also Matthews v. Shalala, 10 F.3d 678, 679-80 (9th

Cir. 1993) (ALJ properly found claimant who was able to do housecleaning,

including vacuuming and dishwashing, and attended school three days a week, did

not have disabling pain precluding all work).

      In sum, the ALJ properly considered several factors which were relevant to

an evaluation of Morillas’s credibility and the merits of her subjective claims of

disabling pain, and the district court properly affirmed the ALJ’s decision, as it

provided an appropriate rationale supported by substantial evidence. See Burch,

400 F.3d at 681.

                                          B.

      When posing a hypothetical question to a VE, the ALJ must set out all of a

claimant’s limitations or restrictions. Magallanes v. Bowen, 881 F.2d 747, 756

(9th Cir. 1989). However, the ALJ need only include limitations supported by

substantial evidence in the record. Osenbrock v. Apfel, 240 F.3d 1157, 1162-63

(9th Cir. 2001). In this case, the hypotheticals posed to the VE accurately

described all of the limitations the ALJ found supported by the record.

      Contrary to Morillas’s suggestion that the ALJ found she did not have a CTS

impairment, the ALJ accurately found “equivocal evidence of CTS,” but concluded

that she had no significant functional limitations against frequent reaching,


                                          6
handling, or fingering as a result of such alleged impairment. To be sure, there was

conflicting evidence regarding CTS, with most of the objective medical evidence

supporting Morillas’s claim dating back to 2001 or 2002 in reports by physicians

who treated her or examined her in connection with her worker’s compensation

claim shortly after she quit her job as a bartender. But even then, she was

diagnosed with only “mild” CTS, which was “improving” and appeared to have

resolved by mid-2002, and there were mixed reports about functional limitations

due to that condition. In the intervening years prior to the ALJ hearing in

September 2006, there was only scant evidence that Morillas complained of or was

treated for any recurrence of CTS. More significantly, however, the assessments

of the various physicians considered by the ALJ contained conflicting opinions

regarding any functional limitations attributable to CTS—with medical expert Dr.

Sonka-Maarek, consulting physiatrist Dr. Madireddi, reviewing physician Dr.

Tambellini, and one of Morillas’s own treating physicians, Dr. Louie, providing

evidence that supports the ALJ’s finding of no significant limitations on non-

overhead reaching, handling, or fingering. Only the physician who examined her

in 2002 in connection with her worker’s compensation claim, Dr. Nayak, and one

of her two principal treating physicians, Dr. Folan, opined that she was precluded

from performing work involving those functions. It is the province of the ALJ, not


                                         7
this court, to resolve such conflicts in the evidence, and we will not disturb the

ALJ’s findings if they are supported by substantial evidence. Magallanes, 881

F.2d at 750.

      The ALJ also reasonably discounted Morillas’s testimony about the

side-effects of her medications. Nothing in the medical records reflected any

complaint to her health providers that her medications made her drowsy, and there

was no evidence of any assessed functional limitation from her medications. In

these circumstances, the ALJ is not obligated to include such complaints in

hypotheticals. See Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006) (because

the claimant never raised the issue of fatigue with his doctors, the ALJ properly

limited the hypothetical to the medical assumptions supported by the record);

Miller v. Heckler, 770 F.2d 845, 849 (9th Cir. 1985) (claimant produced no clinical

evidence showing medications impaired his ability to work).

      After careful consideration of both the adverse and supporting evidence in

this record, we conclude that the ALJ properly found that Morillas did not have

any significant functional limitations as a result of CTS or side-effects from her

pain medications and did not err in excluding these factors from the hypotheticals

posed to the VE. We further conclude that the ALJ’s finding at Step Five was

supported by substantial medical evidence that Morillas’s impairments would not


                                          8
preclude frequent reaching, handling, or fingering, and the testimony of the VE

that a person with her assessed limitations can perform the sedentary, semi-skilled

job of “check cashier.”

                                         IV.

      For all the foregoing reasons, the judgment of the district court is

AFFIRMED.




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