                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 05 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



DARRELL TATE,                                    No. 10-35461

              Plaintiff - Appellant,             D.C. No. 3:09-cv-05302-RJB

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

              Defendant - Appellee.



                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                              Submitted May 2, 2011 **
                                Seattle, Washington

Before: SCHROEDER, McKEOWN, and CALLAHAN, Circuit Judges.

       Darrell Tate appeals from the judgment of the district court affirming a

decision of the Commissioner of Social Security denying his application for




        *
             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).
Supplemental Security Income disability benefits pursuant to Title XVI of the

Social Security Act. We affirm.

        The administrative law judge (“ALJ”) properly weighed the medical

opinions in the record. The ALJ provided specific and legitimate reasons,

supported by substantial evidence, for giving less weight to the psychological

evaluations of Dr. Pamela Sarlud-Heinrich and Dr. Shoshanna Press, including that

Tate had not been forthcoming with these doctors about his alcohol and substance

abuse and had embellished his symptoms. See Lester v. Chater, 81 F.3d 821, 830-

31 (9th Cir. 1995). The ALJ properly gave greater weight to the psychological

evaluation of Dr. Anita Peterson because Dr. Peterson’s conclusions were

consistent with independent evidence in the record. See Tonapetyan v. Halter, 242

F.3d 1144, 1149 (9th Cir. 2001). The ALJ also properly accorded great weight to

the medical evaluations that concluded that Tate could perform sedentary work,

because the evaluations were supported by physical examinations, Lester, 81 F.3d

at 830, and consistent with the evidence in the record, Tonapetyan, 242 F.3d at

1149.

        In evaluating Tate’s claim, the ALJ properly followed the five-step inquiry

for determining whether a claimant qualifies for disability benefits. 20 C.F.R.

§§ 404.1520, 416.920; Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir.


                                           2                                   10-35461
2001). Substantial evidence supports the ALJ’s conclusion that Tate’s alcohol and

substance abuse contributed materially to a finding of disability and that, if Tate

stopped abusing substances, he would be able to perform certain types of unskilled,

sedentary work. See Bustamante, 262 F.3d at 954-55. Dr. Peterson concluded

that, if Tate stopped abusing substances, he would have only moderate restrictions

in activities of daily living and social functioning, and would be able to perform

three-step, repetitive tasks in a structured, low-pressure setting. Tate’s medical

examiners and a treating physician determined that his physical impairments did

not prevent Tate from performing sedentary work with certain postural restrictions.

See Lester, 81 F.3d at 830. A vocational expert testified that an individual with

Tate’s functional restrictions could work in certain representative positions

available nationally and in Washington state. See Magallanes v. Bowen, 881 F.2d

747, 756 (9th Cir. 1989).

      Substantial evidence supports the ALJ’s determination that Tate’s diabetes is

not sufficiently severe to qualify as a disability under Appendix 1 to 20 C.F.R. Part

404. See 20 C.F.R. § 404.1520(a)(4)(iii); 20 C.F.R. Part 404, Appendix 1 § 9.08.

Tate is able to walk with a cane and has only some limitations on his ability to

perform other gross and dexterous movements.

      AFFIRMED.


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