                                                                           FILED
                             NOT FOR PUBLICATION                            OCT 26 2010

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




                             FOR THE NINTH CIRCUIT



DEBRA WENTZ,                                     No. 10-35003

               Plaintiff - Appellant,            DC No. 3:08 cv-0661 PK

  v.
                                                 MEMORANDUM *
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,

               Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Oregon
                      Garr M. King, District Judge, Presiding

                             Submitted October 8, 2010 **
                                 Portland, Oregon

Before:        TASHIMA, PAEZ, and CLIFTON, Circuit Judges.

       Debra Wentz appeals the district court’s judgment affirming the Social

Security Commissioner’s denial of her application for disability insurance benefits




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
and supplemental security income under Titles II and XVI of the Social Security

Act. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

                                           I.

      Wentz contends that the ALJ erred at Step 4 of the sequential evaluation

process by rejecting three categories of evidence: (1) Wentz’s testimony

concerning severe and disabling symptoms, such as an inability to sit for longer

than twenty minutes; (2) the corroborating testimony of three lay witnesses; and

(3) the opinions of two treating physicians, Dr. Molloy and Dr. Kenyon.

      We conclude that the ALJ properly rejected each category of evidence.

Wentz’s testimony about the severity of her symptoms conflicted with reports by

her psychiatrist, Dr. Sally Godard, indicating that Wentz was in fair health during

much of the relevant time period. Wentz’s testimony also conflicted with evidence

of her daily activities, which suggested that she led a more active life than her

alleged symptoms would permit. This contradictory evidence adequately supports

the ALJ’s negative credibility determination under the clear and convincing

standard. See Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006); Thomas v.

Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). Dr. Godard’s reports and the

evidence of daily activities also conflict with, and support the ALJ’s rejection of,

the lay witness testimony. See Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d


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685, 694 (9th Cir. 2009). Finally, the ALJ did not err by discounting the treating

physicians’ opinions, which were based almost entirely on Wentz’s subjective

complaints. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th

Cir. 2009).

                                         II.

      Wentz also contends that the ALJ made two errors at Step 5. First, she

argues the ALJ propounded an inaccurate hypothetical to the vocational expert

(“VE”). The hypothetical asked the VE to assume that Wentz, due to mental

impairments, could perform only “simple 1, 2, 3 step work.” In contrast, in the

residual functional capacity (“RFC”) determination, the ALJ described Wentz’s

mental impairment as limiting her to “simple, routine, repetitive work.” Although

the hypothetical described the mental impairment differently than the RFC, this

difference in diction does not render the hypothetical inaccurate. Wentz does not

cite any authority suggesting that a VE would understand the phrase “simple,

routine, repetitive work” to impose more severe limitations than the phrase “simple

1, 2, 3 step work.” And the record shows that the VE understood the “simple 1, 2,

3” limitation to be so restrictive as to permit performance of only unskilled jobs,

while excluding both skilled and semi-skilled work. Accordingly, we conclude

that the discrepancy between the language of the hypothetical and the RFC was


                                          -3-
immaterial. See Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995) (noting that

VE hypothetical is proper so long as it “reflects all the claimant’s limitations”).

      Second, Wentz contends that the VE’s testimony (on which the ALJ relied)

conflicted with the Dictionary of Occupational Titles (“DOT”). To rely on

vocational expert testimony, the ALJ must ask the VE if his or her testimony is

consistent with the DOT. Massachi v. Astrue, 486 F.3d 1149, 1152-53 (9th Cir.

2007) (citing SSR 00-4p). If the VE identifies a conflict with the DOT, the ALJ

must obtain a “reasonable explanation” for the conflict before relying on the

testimony. Id. at 1153.

      Here, the ALJ asked the VE to identify any conflicts between her testimony

and the DOT, and the VE identified none. Wentz’s attorney then cross-examined

the VE, but did not challenge her representation that her testimony comported with

the DOT. Accordingly, the ALJ met his obligations under Massachi and SSR 00-

4p to investigate potential conflicts with the DOT, and his reliance on the VE

testimony was therefore proper.


      AFFIRMED.




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