                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           MAY 25 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


RILICIA I. LEVERENZ,                             No. 14-17402

              Plaintiff-Appellant,               D.C. No. 2:13-cv-01468-NVW

 v.
                                                 MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

              Defendant-Appellee.


                    Appeal from the United States District Court
                             for the District of Arizona
                      Neil V. Wake, District Judge, Presiding

                           Submitted January 11, 2017**
                             San Francisco, California

Before: CLIFTON and M. SMITH, Circuit Judges, and ERICKSON,*** District
Judge.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Ralph R. Erickson, United States District Judge for the
District of North Dakota, sitting by designation.
      Rilicia I. Leverenz (“Leverenz”) appeals from the judgment of the district

court upholding the final decision of the Commissioner of Social Security

(“Commissioner”), following an evidentiary hearing by an Administrative Law

Judge (“ALJ”), that she was not disabled and thus not entitled to disability

insurance benefits. The ALJ found that while Leverenz had severe impairments,

including sacroiliac joint dysfunction, lumbar radiculopathy, lumbar neuropathic

pain, peripheral neuropathy, obesity, recurrent major depression, and migraine

headaches, she retained residual functional capacity (“RFC”) to perform light work

with some function-by-function limitations and she was capable of performing her

past relevant work as a housekeeper. We have jurisdiction under 28 U.S.C. §

1291, and we affirm.

      We review the district court’s judgment de novo. Sandgathe v. Chater, 108

F.3d 978, 980 (9th Cir. 1997) (citing Ramirez v. Shalala, 8 F.3d 1449, 1451 (9th

Cir. 1993)). The Commissioner’s decision is properly affirmed “if it is supported

by substantial evidence and based on the application of correct legal standards.”

Id. (citing Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). “Substantial

evidence is ‘more than a mere scintilla but less than a preponderance; it is such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.’” Id. (quoting Andrews, 53 F.3d at 1039). “[W]e review the


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administrative record as a whole, weighing both the evidence that supports and that

which detracts from the ALJ’s conclusion.” Id. (quoting Andrews, 53 F.3d at

1039). If the evidence supports “‘more than one rational interpretation,’ we must

uphold the Commissioner’s decision.” Id. (quoting Andrews, 53 F.3d at 1039-40).

“We review only the reasons provided by the ALJ in the disability determination

and may not affirm the ALJ on a ground upon which [s]he did not rely.” Garrison

v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014).

      The ALJ set forth clear and convincing reasons for disregarding reported

medical symptoms alleged to be causally related to the determinable severe

impairments. Thomas v. Barnhart, 278 F.3d 947, 957-60 (9th Cir. 2002). The ALJ

also gave careful consideration to the credibility of the reports of the severity of

symptoms before correctly concluding that the reported symptoms were not

substantiated by objective medical evidence. The ALJ properly weighed

Leverenz’s testimony along with the appropriate medical evidence, including the

observations of Dr. Shepard, a consultative examining physician who concluded

that Leverenz’s actual physical functioning was inconsistent with her complaints.

      The ALJ properly excluded migraine headaches from complainant’s RFC

determination because the record did not support her claims regarding their

severity, and her daily activities were inconsistent with Leverenz’s claimed


                                           3
symptoms. Id. at 959 (citing Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d

595, 600 (9th Cir. 1999)) (“If the ALJ’s credibility finding is supported by

substantial evidence in the record, we may not engage in second-guessing.”); see

also Bray v. Comm’r of Soc. Sec. Admin, 554 F.3d 1219, 1227 (9th Cir. 2009)

(citing Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997)) (“In reaching

a credibility determination, an ALJ may weigh inconsistencies between the

claimant’s testimony and his or her conduct, daily activities, and work record,

among other factors.”).

      Any error committed by the ALJ in failing to specifically address the

observations of Leverenz’s husband was harmless because that testimony was

nearly identical to Leverenz’s own testimony. Molina v. Astrue, 674 F.3d 1104,

1121-22 (9th Cir. 2012) (quoting Buckner v. Astrue, 646 F.3d 549, 560 (8th Cir.

2011) (“[A]n ALJ’s failure to comment upon lay witness testimony is harmless

where ‘the same evidence that the ALJ referred to in discrediting [the claimant’s]

claims also discredits [the lay witness’s] claims.’”)) .

      Substantial evidence supported the ALJ’s decision to reject the opinion of

treating physician Dr. Womack because the medical source statement was on a

standard form check-off report that failed to provide “any clinical findings or

narrative to support the limitations assessed.” The ALJ also properly considered


                                            4
that more than a year had passed since Dr. Womack last treated Leverenz. Dr.

Womack’s opinion was then weighed against the opinions of two other physicians

that were based on objective clinical findings made following personal

examination of Leverenz, as well as the opinion of the doctor who prepared a

functional assessment citing to specific evidence. See Batson v. Comm’r of Soc.

Sec. Admin., 359 F.3d 1190, 1194-95 (9th Cir. 2004) (holding that the ALJ did not

err in giving minimal weight to the views of treating physicians whose opinions

were conclusory, in the form of a check list, lacked substantive medical findings,

and conflicted with the “results of a consultative medical evaluation”); Thomas,

278 F.3d at 957 (“The ALJ need not accept the opinion of any physician, including

a treating physician, if that opinion is brief, conclusory, and inadequately

supported by clinical findings.”).

      We decline Leverenz’s invitation to address the credit-as-true rule described

in Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Because the ALJ

properly denied claimant’s application for benefits, there is no reason to consider

remand.

      AFFIRMED.




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