                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 22 2010

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




                            FOR THE NINTH CIRCUIT



LEANNIA D. COWEN,                                No. 08-17641

              Plaintiff - Appellant,             D.C. No. 2:07-cv-01138-KJM

  v.
                                                 MEMORANDUM *
COMMISSIONER OF SOCIAL
SECURITY,

              Defendant - Appellee.



                   Appeal from the United States District Court
                      for the Eastern District of California
                 Kimberly J. Mueller, Magistrate Judge, Presiding

                            Submitted October 6, 2010 **
                             San Francisco, California

Before: HUG, RYMER and N.R. SMITH, Circuit Judges.




        *
             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).
      Leannia Cowen appeals the district court’s decision affirming the

Administrative Law Judge’s (“ALJ”) denial of her application for disability

insurance benefits. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm.

1.    The ALJ properly relied on Cowen’s prior inconsistent statements about her

illicit drug use, factual contradictions regarding her physical limitations, lack of

medical evidence and treatment regimen, and daily activities to find Cowen’s

testimony was not credible. The ALJ’s reasoning is supported by the record and

based on acceptable factors. See Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir.

1996); Soc. Sec. Ruling 96-7p. The ALJ thus satisfied the “clear and convincing”

standard for rejecting a claimant’s testimony. See Dodrill v. Shalala, 12 F.3d 915,

918 (9th Cir. 1993).

2.    Cowen’s impairments must meet or equal both parts A and B of Listing

12.04 for her to be presumptively disabled under that Listing. See 20 C.F.R. Part

404, Subpt. P, App. 12.04. Substantial evidence supports the ALJ’s finding that

Cowen’s impairments did not meet or equal part B, which requires “marked”

limitations in two of four listed life activities. See 20 C.F.R. Part 404, Subpt. P,

App. 12.04(B). “Marked” is defined as “more than moderate, but less than

extreme.” 20 C.F.R. Part 404, Subpt. P, App. 12.00(C). Both doctors who


                                      Page 2 of 4
performed a psychological evaluation of Cowen concluded that she could function

socially and in a work environment. The record reflects that Cowen’s treating

physician noted her “depression is doing well.” Cowen’s reliance on the Global

Assessment Functioning (“GAF”) score of 55-60 assigned by one doctor is

misplaced. Even if the GAF was accepted as a method of evaluating the severity

of impairments,1 Cowen admits in her reply brief that her GAF score of 55-60

indicates moderate difficulty in social and occupational functioning. Because

“moderate” limitation is less than “marked” limitation, the ALJ had substantial

evidence to find Cowen did not meet or equal part B of Listing 12.04.2

3.    The ALJ did not err at Step 5 of the disability analysis. First, because the

ALJ properly discredited Cowen’s testimony, the ALJ had substantial evidence in

the form of the remaining medical records indicating Cowen could perform



      1
            The GAF score (as a method for evaluating the severity of
impairments) has been specifically rejected by the Social Security Administration.
65 Fed. Reg. 50746, 50764-65 (Aug. 21, 2000).
      2
               Cowen waived her arguments regarding Listings 1.02, 12.04(C) and
12.05(C) by not raising these arguments to the district court. See Warre v. Comm’r
of Soc. Sec. Admin., 439 F.3d 1001, 1007 (9th Cir. 2006); Edlund v. Massanari,
253 F.3d 1152, 1158 & n.7, 1160 n.9 (9th Cir. 2001). Cowen made no mention of
Listings 1.02 or 12.05 in any of her pleadings or briefs to the district court. In
addition, although Cowen raised and argued that she met or equaled Listing 12.04
to the district court, her argument only addressed parts A and B and did not address
part C.

                                    Page 3 of 4
medium exertional work. Second, the ALJ specifically found Cowen’s capacity

for medium work was not significantly diminished by her nonexertional (mental)

limitations of limited public contact and unskilled entry-level work. If an ALJ

finds a claimant’s “nonexertional limitations do not significantly affect his

exertional capabilities,” the ALJ may use the medical-vocational guidelines (“the

grids”) in lieu of calling a vocational expert. See Bates v. Sullivan, 894 F.2d 1059,

1063 (9th Cir. 1990), overruled on other grounds by Bunnell v. Sullivan, 947 F.2d

341 (9th Cir. 1991) (en banc). Therefore, the ALJ correctly used the grids to find

that Cowen was not disabled, and instead, could perform jobs that exist in

sufficient numbers in the national economy.

      AFFIRMED.




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