                                                                          FILED
                           NOT FOR PUBLICATION                             OCT 10 2013

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


WENDY JEROME,                                    No. 12-35409

              Plaintiff - Appellant,             D.C. No. 4:09-cv-00020-SEH

  v.
                                                 MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,

              Defendant - Appellee.


                   Appeal from the United States District Court
                           for the District of Montana
                    Sam E. Haddon, District Judge, Presiding

                           Submitted October 7, 2013**
                               Portland, Oregon

Before: SILVERMAN, W. FLETCHER, and CALLAHAN, Circuit Judges.

       Wendy Jerome appeals the district court’s grant of summary judgment in

favor of the Commissioner’s denial of disability benefits. We have jurisdiction


        *
             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).
pursuant to 28 U.S.C. § 1291 and review the administrative decision for substantial

evidence. Molina v. Astrue, 674 F.3d 1104, 1110-11 (9th Cir. 2012). We affirm.

      Jerome asserts that the ALJ: (1) erred when he failed to deem her right arm

paresthesia, her cervical stenosis, and her urinary stress incontinence as “severe”

impairments; (2) erred when he rejected her treating physician’s opinion that she

could only occasionally use her right hand and had severe limitations on her ability

to stand and walk; (3) erred in his determination as to her credibility; and (4) erred

in his rejection of the conclusions reached by the vocational expert when she was

asked to compare Jerome’s limitations to a hypothetical situation posed to her.

      First, even if we were to hold that the ALJ committed legal error by finding

that Jerome’s right-arm paresthesia and cervical stenosis were not severe, such

error would be harmless. The ALJ found that Jerome’s HIV and spinal fracture

were severe impairments, and then considered evidence of all her impairments at

step four. The fact that the ALJ discussed both Jerome’s severe and non-severe

impairments at step four renders the distinction between severe and non-severe

impairments legally immaterial, and thus any alleged error was harmless. Lewis v.

Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (holding that where the ALJ considered

evidence of limitations posed by claimant’s bursitis at step four of the disability

analysis, any error in failing to consider bursitis “severe” at step two was


                                          2
harmless). The ALJ’s failure to explicitly address Jerome’s urinary stress

incontinence was likewise harmless because the limitations caused by this

impairment were incorporated into her residual functional capacity and it was thus

“irrelevant to the ALJ’s ultimate disability conclusion.” Stout v. Comm’r, 454 F.3d

1050, 1055 (9th Cir. 2006).

      Second, the ALJ did not err in rejecting the opinion of Jerome’s treating

physician. The ALJ found material incongruities between the opinion that the

treating physician offered in the social security questionnaire and that which she

expressed in her personal records of Jerome’s treatment. This provided the ALJ

sufficient justification to reject the opinion. See Tommasetti v. Astrue, 533 F.3d

1035, 1041 (9th Cir. 2008); Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.

2005).

      Third, the ALJ did not err in deciding to discredit Jerome’s subjective

statements concerning the intensity, persistence, and limiting effects of her

impairments. An ALJ’s credibility determination must be based on specific

findings supported by substantial evidence and clear and convincing reasons.

Tommasetti, 533 F.3d at 1039. Here, the ALJ provided a convincing explanation

for his credibility findings by pointing to the numerous instances in the

adjudicatory record where Jerome’s subjective complaints were not supported by


                                          3
the objective medical record. The ALJ’s findings are sufficiently specific to show

that the credibility determination was not arbitrary and was supported by

substantial evidence with clear and convincing reasons. Tommasetti, 533 F.3d at

1039–40.

       Lastly, the ALJ refused to accept that the work limitations set forth in a

hypothetical posed to the vocational expert were an accurate description of

Jerome’s own limitations. This was not an error. “An ALJ is free to accept or

reject restrictions in a hypothetical question that are not supported by substantial

evidence.” Osenbrock v. Apfel, 240 F.3d 1157, 1164-65 (9th Cir. 2001). Because

the hypothetical depended on the opinion of the treating physician (which the ALJ

rejected) and on Jerome’s own testimony (which the ALJ found to be not fully

credible), it was not supported by substantial evidence and the ALJ was therefore

free to reject it.

       AFFIRMED.




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