                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 20 2011

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




                            FOR THE NINTH CIRCUIT



JUDITH LYNNE BLACK,                              No. 10-15055

              Plaintiff - Appellant,             D.C. No. 5:08-cv-00792-JW

  v.
                                                 MEMORANDUM *
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,

              Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Northern District of California
                    James Ware, Chief District Judge, Presiding

                       Argued and Submitted April 14, 2011
                            San Francisco, California

Before: THOMAS and RAWLINSON, Circuit Judges, and CARNEY, District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Cormac J. Carney, U.S. District Judge for the Central
District of California, sitting by designation.
      Judith Lynne Black appeals the district court’s grant of summary judgment

in favor of the Social Security Commissioner in her action challenging the denial

of her application for disability insurance benefits under Title II of the Social

Security Act, 42 U.S.C. §§ 401–434 (2006). We review the district court’s grant of

summary judgment de novo. Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219,

1222 (9th Cir. 2009). However, the scope of our review of the Commissioner’s

denial of disability benefits is limited. “We may set aside a denial of benefits only

if the Commissioner’s findings are not supported by substantial evidence or based

on legal error.” Id. (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir.

2006)). Where the evidence is susceptible to more than one rational interpretation,

we must uphold the Commissioner’s decision. See id. Black contends that the

Administrative Law Judge (“ALJ”) erred by improperly discounting the opinion of

her treating physician, improperly discounting her statements regarding the

severity of her pain and depression symptoms, and by finding that the

Commissioner carried his burden to show that Black can perform other jobs that

exist in significant numbers in the national economy. We affirm.

      The ALJ provided specific and legitimate reasons supported by substantial

evidence in the record for discounting the contradicted March 2006 opinion of Dr.

Jonathan Green, Black’s treating physician. See Lester v. Chater, 81 F.3d 821,


                                           2
830–31 (9th Cir. 1995). Dr. Green’s opinion was not supported by objective

medical findings, and Dr. Green appeared to have relied heavily on Ms. Black’s

subjective complaints about her low back pain, which the ALJ found were only

partly credible. See Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th

Cir. 2004) (affirming ALJ’s decision to discount opinions of treating physicians

because it was in the form of a checklist, did not have supportive objective

evidence, was contradicted by other statements and assessments of claimant’s

medical condition, and was based on claimant’s subjective descriptions of pain).

The ALJ also properly discounted Dr. Green’s opinion because it was inconsistent

with Dr. Gable’s independent findings and opinion about Black’s residual

functional capacity, as well as the opinions of two non-examining physicians who

based their opinions on Dr. Gable’s clinical findings. See Thomas v. Barnhart, 278

F.3d 947, 957 (9th Cir. 2002) (“The opinions of non-treating or non-examining

physicians may also serve as substantial evidence when the opinions are consistent

with independent clinical findings or other evidence in the record.”)

      Neither did the ALJ err by finding that some of Black’s statements regarding

the severity of her pain and depression symptoms were not entirely credible. The

ALJ must give specific, clear and convincing reasons supported by substantial




                                          3
evidence for finding that Black’s subjective testimony was not credible. See

Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996).

      After describing in some detail Black’s medical history and the findings in

the medical record, the ALJ found that Black’s testimony regarding the severity of

her impairments was inconsistent with the objective medical findings in the record

and the level of treatment that Black received. “While subjective pain testimony

cannot be rejected on the sole ground that it is not fully corroborated by objective

medical evidence, the medical evidence is still a relevant factor in determining the

severity of the claimant’s pain and its disabling effects.” Rollins v. Massanari, 261

F.3d 853, 857 (9th Cir. 2001). The inconsistencies between Black’s medical and

treatment history and the severity of symptoms that she described are legally

sufficient to support a negative credibility determination. See Batson, 359 F.3d at

1196; Smolen, 80 F.3d at 1284 n.8.

      The Commissioner also met his burden to show that Black could perform

other jobs that exist in significant numbers in the national economy. The ALJ and

the Appeals Council permissibly relied on both testimony from a vocational expert

and occupations coded in the Dictionary of Occupational Titles. Although the ALJ

erred by failing to ask the vocational expert whether her testimony conflicted with

the Dictionary of Occupational Titles, that error was harmless because there was no


                                          4
actual conflict. See Massachi v. Astrue, 486 F.3d 1149, 1153, 1154 n.19 (9th Cir.

2007). The occupations that the vocational expert provided in her testimony match

nursing occupations that are coded as light work in the Dictionary of Occupational

Titles, and the Appeals Council explicitly added the Dictionary of Occupational

Titles Codes for those occupations in its review of the ALJ’s decision.




      AFFIRMED.




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