                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JAN 07 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


HERMAN F. EVANS, IV,                             No.   16-56669

              Plaintiff-Appellant,               D.C. No. 2:15-cv-07974-KES

 v.
                                                 MEMORANDUM*
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
          Defendant-Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                    Karen E. Scott, Magistrate Judge, Presiding

                     Argued and Submitted December 5, 2018
                              Pasadena, California

Before: RAWLINSON and BEA, Circuit Judges, and RICE,** Chief District
Judge.

      Herman Evans appeals the district court’s judgment affirming the Social

Security Commissioner’s denial of Evans’s application for supplemental security

income and disability insurance benefits. We have jurisdiction under 28 U.S.C. §

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Thomas O. Rice, Chief United States District Judge
for the Eastern District of Washington, sitting by designation.
1291 and 42 U.S.C. § 405(g), and we review the district court’s judgment

affirming the Administrative Law Judge’s (“ALJ”) denial of benefits de novo.

Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). Because the ALJ’s decision

is supported by substantial evidence, we affirm.

      1. Evans has withdrawn his contention that the ALJ erred when she held that

Evans did not meet the requirements of Social Security Listing 1.04A.

      2. The ALJ did not err in assessing the weight of Evans’s treating and

examining physicians’ opinions. An ALJ may reject a treating doctor’s opinion by

providing “specific and legitimate reasons that are supported by substantial

evidence.” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017).

      Here, the ALJ easily satisfied that burden. As to Dr. Schwarz, the ALJ found

Dr. Schwarz’s assessment that Evans was incapable “of performing even sedentary

work activity” “wholly inconsistent with Dr. Schwarz’s mild clinical findings, the

other mild evidence of record, and Dr. Schwarz’s general lack of prescribed

treatment beyond medication and home exercises.” Dr. Lorber testified to the same

effect, and Dr. Hasday’s December 2014 examination also assessed Evans as

capable of “light” work activity.

      As to Dr. Bilezikjian, the ALJ flagged that Dr. Bilezikjian’s own clinical

findings and subsequent 2013 spinal x-rays and CT scans showed no significant


                                          2
findings apart from some mild degenerative changes. Accordingly, Dr.

Bilezikjian’s assessment regarding Evans’s condition “appear[ed] more reflective

of the claimant’s subjective complaints and particular clinical presentation than the

actual clinical and diagnostic evidence at that time.”

      The ALJ’s explanation satisfies her burden. See Tommasetti v. Astrue, 533

F.3d 1035, 1041-42 (9th Cir. 2008) (affirming ALJ’s rejection of claimant’s

treating physician’s opinion on the grounds that (1) the opinion was based mostly

on the claimant’s self-reports, which had properly been discounted as not credible,

and (2) the opinion was “inconsistent with the medical records”).

      3. The ALJ committed no error in holding that Evans did not suffer from a

severe mental impairment, and in discounting the opinion of Evans’s treating

physician Dr. Friedman. The ALJ reached that conclusion on the grounds that Dr.

Friedman’s records “reflect[] little more than the claimant’s subjective responses”

and that Evans received only sporadic treatment for his condition. Additionally, the

ALJ noted Evans’s demeanor at his two hearings, at which he “only cited vague

complaints of depression due to his pain issues and the fact that he is currently

homeless.” Thus, the ALJ held, Evans’s mental impairment would have no more

than a “minimal effect on his ability to perform basic work-related activities.”




                                           3
      We have repeatedly held that an ALJ may discount a medical opinion that

relies on subjective statements rather than clinical findings. See, e.g., Tonapetyan

v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). A conservative course of treatment

can also justify discounting a treating physician’s finding of total disability. Rollins

v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001). And an ALJ may properly

consider a claimant’s “demeanor and appearance at the hearing.” Matney ex rel

Matney v. Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992). Accordingly, the ALJ’s

determination that Evans did not suffer from a severe mental impairment was

supported by substantial evidence.

      4. The ALJ also did not err in discounting Evans’s symptom testimony

because she provided “specific, clear and convincing reasons” to reject it. See

Tommasetti, 533 F.3d at 1039. In assessing symptom testimony, the ALJ applies

“ordinary techniques of credibility evaluation.” Id. For instance, “if a claimant

complains about disabling pain but fails to seek treatment,” an ALJ “may use such

failure as a basis for finding the complaint unjustified or exaggerated.” Orn v.

Astrue, 495 F.3d 625, 638 (9th Cir. 2007). It is likewise “a permissible inference”

to conclude that a claimant’s pain is “not as all-disabling as he reported in light of

the fact that he did not seek an aggressive treatment program.” Tommasetti, 533

F.3d at 1039.


                                           4
      Here, the ALJ found Evans’s testimony not “wholly credible” because she

found it inconsistent with the objective medical evidence and with Evans’s

irregular and conservative treatment. This explanation is supported by the record.

The ALJ reasonably contrasted Evans’s failure to seek more aggressive treatment

with his testimony that he was bedridden and could barely hold an empty glass

because of pain. See Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999)

(rejecting subjective pain complaints where petitioner’s “claim that she

experienced pain approaching the highest level imaginable was inconsistent with

the ‘minimal, conservative treatment’ that she received”).

      5. Because the ALJ properly discounted Evans’s testimony and the opinions

of the treating physicians, the ALJ committed no error in omitting any additional

restrictions based on those rejected statements in evaluating Evans’s residual

functional capacity.

      AFFIRMED.




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