                                                                              FILED
                           NOT FOR PUBLICATION                                 JAN 09 2013

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



                            FOR THE NINTH CIRCUIT


MAMIE NANNETT DEAN,                              No. 11-36060

              Plaintiff - Appellant,             D.C. No. 3:10-cv-01073-MO

  v.
                                                 MEMORANDUM*
COMMISSIONER OF SOCIAL
SECURITY,

              Defendant - Appellee.


                   Appeal from the United States District Court
                            for the District of Oregon
                  Michael W. Mosman, District Judge, Presiding

                          Submitted November 7, 2012**
                                Portland, Oregon

Before: ALARCÓN, McKEOWN, and PAEZ, Circuit Judges.


       Mamie N. Dean appeals from the district court’s judgment affirming the

Commissioner of Social Security’s final decision that Dean was not disabled and


        *
             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).
not entitled to Disability Insurance Benefits under Title II of the Social Security

Act. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district

court’s order affirming the Commissioner’s decision. Batson v. Comm’r of Soc.

Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). We affirm the decision of the

Commissioner where, as here, it is supported by substantial evidence and the

Commissioner applied the correct legal standards. Id.

1.    The Administrative Law Judge (ALJ) gave “specific, clear and convincing

reasons” for rejecting Dean’s testimony about the severity of her symptoms. See

Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotations and

citation omitted). He found that Dean’s testimony was not consistent with the

medical evidence, including a report from Dean’s psychological provider who

“wondered about the validity” of Dean’s stories, a report from Dean’s doctor

stating that she was doing “very well” after surgery, and a report from a medical

provider who reported that Dean was “able to endure the benign [heart]

palpitations without any problems” once she knew they were not life-threatening.

See Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010). The ALJ

also found that Dean could “perform a full range of daily activities which is

inconsistent with the nature, severity and subjective complaints of the complaint,”

citing Dean’s own testimony and her adult function report about her daily


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activities. We need not decide if the ALJ’s other three reasons for rejecting Dean’s

testimony were clear or convincing, because these two reasons are sufficiently

specific, clear, and convincing, and are supported by substantial evidence in the

record. See Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012).

2.    There is also substantial evidence supporting the ALJ’s rejection of the

treating physician’s testimony. Although the opinion of a treating doctor is given

more weight than the opinion of a non-treating doctor, the ALJ may reject such an

opinion if it is contradicted by another doctor and the ALJ offers “specific and

legitimate reasons” for rejecting the opinion. Turner, 613 F.3d at 1222 (quoting

Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995)). Here, the ALJ gave three

reasons for rejecting the testimony of Dean’s treating physician: (1) He did not

submit objective medical findings, but rather filled out only a standardized form,

(2) He appeared to rely mostly on Dean’s subjective reporting, and (3) His findings

were inconsistent with those of the State’s physicians. These reasons are supported

by substantial evidence in the record, including an eight-page checklist on which

Dean’s treating doctor provided primarily conclusory “yes” or “no” answers which

were based on Dean’s subjective symptoms. The ALJ therefore provided

sufficiently specific and legitimate reasons for rejecting the testimony of Dean’s

treating doctor. See Batson, 359 F.3d at 1195 (affirming ALJ’s rejection of


                                          3
doctor’s opinion based on the same three reasons); see also Tommasetti v. Astrue,

533 F.3d 1035, 1041 (9th Cir. 2008) (“An ALJ may reject a treating physician’s

opinion if it is based to a large extent on a claimant’s self-reports that have been

properly discounted as incredible.”) (internal quotations and citation omitted).

3.    Dean argues that the ALJ erred by rejecting the lay witness testimony of her

daughter without comment. See Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007)

(an ALJ may reject a lay witness’s testimony only “upon giving a reason germane

to that witness”). Although the ALJ said he had “strongly considered” the

testimony of Dean’s daughter and “incorporated the appropriate limitations in the

residual functional capacity,” he also noted that “the activities listed [in the

daughter’s report] are similar to those described by the claimant, which show few

restrictions.” The residual functional capacity (RFC) assessment does not

incorporate the limitations about which Dean’s daughter testified. While it’s

unclear whether the ALJ outright rejected the testimony of Dean’s daughter, we

need not decide whether he erred, because any error was harmless. See Molina,

674 F.3d at 1122 (concluding that “[a]lthough the ALJ erred in failing to give

germane reasons for rejecting the lay witness testimony, such error was harmless

given that the lay testimony described the same limitations as Molina’s own

testimony, and the ALJ’s reasons for rejecting Molina’s testimony apply with


                                           4
equal force to the lay testimony,” where one of the reasons for rejecting the

claimant’s testimony was that “her own testimony about her daily activities”

contradicted the alleged severity of her impairment).

4.    Dean also argues that the ALJ ignored the mandatory provisions of

SSR 96-8p, which require an ALJ to consider “all of the relevant evidence in the

case record,” including the side effects of medication, when assessing a claimant’s

RFC. There is no merit to this argument, however, since the ALJ was not required

to consider evidence that he had already discredited, including testimony from

Dean, her daughter, and her treating doctor, all of which related to Dean’s fatigue

and drowsiness. See Batson, 359 F.3d at 1197 (stating that when determining the

claimant’s residual functional capacity, the ALJ is “not required to incorporate

evidence from the opinions of . . . treating physicians” that have been “permissibly

discounted”). Furthermore, the ALJ did consider limitations on Dean’s ability to

use her shoulder and incorporated them in the RFC to the extent he determined

appropriate.

5.    Dean further argues that the ALJ’s finding that Dean can perform other work

is not supported by substantial evidence. Because the ALJ did not err in rejecting

the testimony of Dean, her daughter, and her treating doctor, however, the evidence

in the record supports the ALJ’s finding that Dean can perform other work. See id.


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AFFIRMED.




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