                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 22 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

VONNIE RAE ALTO,                                No.    19-35437

                Plaintiff-Appellant,            D.C. No. 3:16-cv-01437-AC

 v.
                                                MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,

                Defendant-Appellee.

                  Appeal from the United States District Court
                           for the District of Oregon
               Marco A. Hernandez, Chief District Judge, Presiding

                              Submitted July 8, 2020**
                                 Portland, Oregon

Before: M. MURPHY,*** BENNETT, and MILLER, Circuit Judges.

      Vonnie Alto appeals from the district court’s judgment affirming the Social

Security Administration’s denial of her application for disability benefits. We have


      *
             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 Michael R. Murphy, United States Circuit Judge for
the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
jurisdiction under 28 U.S.C. § 1291, and we affirm.

      1.     The ALJ did not err by rejecting Dr. Long’s and Dr. Siemienczuk’s

opinions. Because Dr. Long and Dr. Siemienczuk treated Alto, their opinions are

entitled to controlling weight if they are “not inconsistent with other substantial

evidence” in the record. 20 C.F.R. § 404.1527(c)(2). An ALJ may reject a treating

physician’s opinion that is contradicted by other medical opinion evidence,

however, by providing “specific and legitimate reasons supported by substantial

evidence in the record.” Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995)

(internal quotation marks omitted).

      Substantial evidence supports the ALJ’s conclusions that Dr. Long’s and Dr.

Siemienczuk’s opinions were unsupported by the medical evidence and

contradicted by the opinions of other doctors. After Dr. Long ordered an MRI, he

described the results as “minimally symptomatic” and said that it was “difficult to

explain” Alto’s reported pain “when [her] symptoms were not reproducible” in his

physical examination. An examination from another treating physician, Dr. Sager,

found “no abnormalities.” A third treating physician, Dr. Layman, found full range

of motion and rejected Dr. Long’s opinion that Alto’s pain was nerve-related. And

the three doctors who examined Alto as part of her worker’s compensation claim

similarly found no physical basis for a work restriction; one observed that she had

“no objective condition[s] and no abnormalities,” and two others were “mystified”


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that Dr. Long sought invasive treatment for Alto’s pain symptoms despite

observing no objective clinical findings.

      Alto responds that the ALJ legally erred by considering the findings of

doctors who examined Alto for worker’s compensation purposes. But we have held

that “[t]he purpose for which medical reports are obtained does not provide a

legitimate basis for rejecting them.” Lester, 81 F.3d at 832. And we have

previously considered reports prepared by doctors who examined claimants for

worker’s compensation purposes—whose reports will, as often as not, benefit

claimants. See, e.g., Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1094

(9th Cir. 2014). We see no error in the ALJ’s consideration of the examining-

physician reports, and substantial evidence supports the ALJ’s ultimate

determination not to credit the more severe restrictions to which Alto’s treating

physicians opined.

      2.     The ALJ also did not err in rejecting Alto’s subjective pain testimony.

If a claimant presents “objective medical evidence of an underlying impairment

which could reasonably be expected to produce the pain or other symptoms

alleged,” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (internal

quotation marks omitted), an ALJ may reject her testimony “only by offering

specific, clear and convincing reasons for doing so,” Smolen v. Chater, 80 F.3d

1273, 1281 (9th Cir. 1996).


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      As a threshold matter, we reject the Commissioner’s argument that because

evidence in the record shows that Alto may have been malingering, the ALJ

needed offer only “specific, cogent reasons” for rejecting her pain testimony. The

ALJ did not find that Alto was malingering, so we cannot uphold the ALJ’s

decision on that basis. SEC v. Chenery Corp., 332 U.S. 194, 196 (1947).

      The ALJ nevertheless provided specific, clear, and convincing reasons

supported by substantial evidence for rejecting Alto’s pain testimony. See

Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008).

Alto incorrectly posits that the ALJ failed to specify which testimony he credited

or rejected; the ALJ’s residual functional capacity reflected Alto’s pain complaints

as to her shoulders, and the ALJ specifically rejected Alto’s further complaints

“regarding the alleged pain in her arms, elbows, hands, fingers, and thumbs.” The

ALJ’s basis for doing so was supported by substantial evidence in the record. As

discussed above, Alto’s pain complaints conflict with the objective medical

evidence showing no abnormalities. See id. (“Contradiction with the medical

record is a sufficient basis for rejecting the claimant’s subjective testimony.”). And

as Dr. Button—whose report the ALJ cited in rejecting Alto’s pain testimony—

observed, Alto’s effort during his physical examination was “sorely lacking.” See

Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (holding that a claimant’s

failure to give “maximum or consistent effort” during physical capacity


                                          4
examinations was a “compelling” reason to reject her testimony).

      3.     We have no jurisdiction to review the Appeals Council’s decision not

to remand the case after Alto submitted an opinion from Dr. Mandiberg and

medical evidence supporting a diagnosis of carpal tunnel syndrome. See Taylor v.

Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1231 (9th Cir. 2011). But we agree

that we may consider whether the new evidence undermines the ALJ’s findings

because “when a claimant submits evidence for the first time to the Appeals

Council, which considers that evidence in denying review of the ALJ’s decision,

the new evidence is part of the administrative record.” Brewes v. Comm’r of Soc.

Sec. Admin., 682 F.3d 1157, 1159–60 (9th Cir. 2012).

      The new evidence does not undermine the substantial evidence on which the

ALJ relied. “[T]he key question is not whether there is substantial evidence that

could support a finding of disability, but whether there is substantial evidence to

support the Commissioner’s actual finding that claimant is not disabled.”

Jamerson v. Chater, 112 F.3d 1064, 1067 (9th Cir. 1997). Dr. Mandiberg’s

opinion, in particular, echoes the inconclusive physical findings of Alto’s other

doctors, and itself suggests that Alto may be able to work jobs similar to those

described in the ALJ’s step-five findings. We find nothing in the electrodiagnostic

or Dr. Mandiberg’s report that undermines the substantial evidence supporting the

ALJ’s findings.


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      4.     We reject Alto’s other arguments. The ALJ provided reasons that are

germane to each witness for rejecting the lay witness testimony Alto offered. See

Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). And because the ALJ’s

weighing of the medical opinions was supported by substantial evidence, the ALJ

did not err in holding that the lay witness testimony conflicted with the “more

reliable medical evidence that the ALJ credited.” Molina v. Astrue, 674 F.3d 1104,

1119 (9th Cir. 2012). Similarly, because the ALJ appropriately assessed Alto’s

residual functional capacity by weighing the medical evidence and rejecting Alto’s

subjective pain testimony, the ALJ did not err by failing to include Alto’s other

claimed limitations in his questions to the vocational expert. See Osenbrock v.

Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001).

      AFFIRMED.




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