                                                                            FILED
                            NOT FOR PUBLICATION                              DEC 30 2014

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



                            FOR THE NINTH CIRCUIT


KARRY D. DECK,                                    No. 13-35419

              Plaintiff - Appellant,              D.C. No. 3:12-cv-05024-RBL

  v.
                                                  MEMORANDUM*
CAROLYN W. COLVIN,

              Defendant - Appellee.


                    Appeal from the United States District Court
                      for the Western District of Washington
                    Ronald B. Leighton, District Judge, Presiding

                     Argued and Submitted December 10, 2014
                               Seattle, Washington

Before: HAWKINS, McKEOWN, and TALLMAN, Circuit Judges.

       Karry Deck appeals the district court’s judgment affirming the ALJ’s denial

of her application for Social Security disability benefits. The ALJ followed the

five-step process and found her not disabled at step five after finding a significant

number of jobs existed in the national economy that Deck could still perform,



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
based on a vocational expert’s testimony. We have jurisdiction pursuant to

28 U.S.C. § 1291, and we affirm.1

      First, substantial evidence supports the ALJ’s finding that Deck’s Hepatitis

C does not result in any significant vocational limitations, and thus is non-severe,

where the ALJ relied upon the only medical evaluator to discuss the effects of the

impairment on her ability to perform basic work-related activities—Christine

Allison, a physician’s assistant. Cf. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir.

1996). Dr. Yu, whose opinion Deck alleges the ALJ erred in omitting, merely

diagnosed Deck with Hepatitis C but did not discuss the effect her symptoms

would have on her ability to work.

      Moreover, Deck could have—but did not—obtain a supplemental report

from Dr. Yu opining on what limitations, if any, her Hepatitis C might have

imposed on her ability to work. More than a year elapsed between Dr. Yu’s

original diagnosis and the hearing before the ALJ. Five months elapsed between

Allison’s examination and the ALJ hearing. Deck had time to rebut Allison’s

findings that Deck’s Hepatitis C did not significantly interfere with her ability to

perform basic work-related activities—but she did not do so. Therefore, the ALJ

      1
       We have ordered that Volume One of the Plaintiff-Appellant’s Excerpts of
Record, filed under seal, be unsealed for purposes of addressing facts discussed in
the ALJ’s October 1, 2014, decision.

                                           2
did not err by relying on Allison’s report, based on Dr. Yu’s diagnosis, and

omitting explicit reference to Dr. Yu’s report.

      Second, the ALJ did not err in crediting the opinion of a non-examining,

non-treating doctor over three examining physicians where the ALJ gave specific

and legitimate reasons for doing so. See Lester v. Chater, 81 F.3d 821, 830-31

(9th Cir. 1996). Substantial evidence in the record supports the ALJ’s decision to

give less weight to the three examining physicians’ reports where all of them noted

Deck’s “symptoms would improve if she was actively engaged in treatment and

not abusing substances.” Cf. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)

(holding an ALJ can meet the clear and convincing standard for rejecting medical

opinions “by setting out a detailed and thorough summary of the facts and

conflicting clinical evidence, stating his interpretation thereof, and making

findings”). Therefore, the ALJ did not err by giving more weight to the non-

examining medical opinion of Dr. Eisenhauer because “it is consistent with the

objective medical evidence.”

      Third, the ALJ did not err by failing to discuss Deck’s Global Assessment of

Functioning (“GAF”) score because the score is used for treatment purposes and

not for rating a person’s ability to work. See Garrison v. Colvin, 759 F.3d 995,

1002 n.4 (9th Cir. 2014).


                                          3
      Fourth, substantial evidence supports the ALJ discounting Deck’s credibility

due to inconsistency with her reported daily activities, inconsistency with the

objective medical evidence, sporadic work history, failure to follow up on medical

referrals, and her continued drug use. These provide the specific, clear, and

convincing reasons an ALJ must give for his disbelief of a claimant’s pain

testimony. See Orn v. Astrue, 495 F.3d 625, 635-36 (9th Cir. 2007); Thomas v.

Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002).

      Fifth, the district court properly held that, although the ALJ did err in

discrediting Deck’s friend’s third-party lay witness report simply because she was

“likely influenced by her desire to assist” Deck, Valentine v. Comm’r Soc. Sec.

Admin., 574 F.3d 685, 694 (9th Cir. 2009), any error was harmless because the

objective medical evidence did not support the lay witness opinion, which

“constitutes a ‘germane’ reason why her testimony was not completely

persuasive,” Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (citation omitted).

      Finally, there was no error in the ALJ’s residual functional capacity finding

and the proper hypothetical posed to the vocational expert. Since we found no

error above, we find no error here.

      AFFIRMED.




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