                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 08 2015

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



                            FOR THE NINTH CIRCUIT


CYNTHIA SMITH,                                   No. 13-35164

              Plaintiff - Appellant,             D.C. No. 6:11-cv-01263-MA

  v.
                                                 MEMORANDUM*
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,

              Defendant - Appellee.


                  Appeal from the United States District Court
                           for the District of Oregon
                Malcolm F. Marsh, Senior District Judge, Presiding

                            Submitted January 26, 2015


Before: GOODWIN, PREGERSON, and BERZON, Circuit Judges.

       Cynthia Smith appeals the district court’s judgment affirming the

Commissioner of Social Security’s denial of Smith’s application for disability

insurance under Title II of the Social Security Act. Smith alleged disability due to

pain caused by a fractured back. We review the district court’s order de novo, and


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
may set aside the denial of benefits only if it is not supported by substantial

evidence or is based on legal error. Molina v. Astrue, 674 F.3d 1104, 1110 (9th

Cir. 2012). We have jurisdiction under 28 U.S.C. § 1291. We affirm.

      The administrative law judge (“ALJ”) provided specific, clear, and

convincing reasons for finding Smith not entirely credible. First, the ALJ properly

considered that Smith’s complaints of pain were not proportionate to the medical

evidence. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir, 2005) (holding that

lack of medical evidence cannot form the sole basis for discounting pain testimony,

but is a factor that an ALJ may consider). Second, the ALJ cited Smith’s failure to

pursue her physician’s recommended treatment as a legitimate specific reason. See

Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (holding that an unexplained

failure to follow a prescribed treatment is a specific reason to discount credibility).

Third, the ALJ’s finding–that Smith’s daily activities, and her poor motivation,

undermined her credibility–also is supported by the record. See Thomas v.

Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).

      Robert Smith’s lay witness testimony was similar to Smith’s testimony, and

the ALJ did not separately address his testimony. Because the ALJ properly

discounted the claimant’s similar testimony, the ALJ gave germane reasons for




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rejecting Robert Smith’s testimony. See Valentine v. Comm’r Soc. Sec. Admin.,

574 F.3d 685, 694 (9th Cir. 2009).

      The ALJ did not err in giving significant weight to the opinion of examining

physician Dr. Webster, and discounting the opinions of treating physician Dr.

Nelson and examining physician Dr. El-Attar. First, the ALJ’s finding that Dr. El-

Attar’s disability conclusion was inconsistent with her own examination findings is

a clear and convincing reason for not relying on the doctor’s opinion. See Bayliss

v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (holding that contradictions

between a doctor’s opinion and that doctor’s own observations is a clear and

convincing reason). Second, the ALJ provided clear and convincing reasons for

giving less weight to the contradicted opinion of treating physician Dr. Nelson

where: the opinion was conclusory, see Meanel v. Apfel, 172 F.3d 1111, 1113-14

(9th Cir. 1999) (holding that a conclusory opinion may be rejected); the opinion

relied in part on Smith’s discredited testimony, see Fair, 885 F.3d at 605 (holding

that a doctor’s reliance on properly discounted subjective complaints is a specific,

legitimate reason); and Dr. Nelson acted as an advocate for Smith’s disability, see

Matney v. Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992). Third, the record

supports the ALJ’s crediting of Dr. Webster’s opinion that Smith’s pain was not

disabling.


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      Finally, the limitations set forth in the ALJ’s residual functional capacity

assessment, and in the hypothetical posed to the vocational expert, included all of

Smith’s limitations that were supported in the record. See Bayliss, 427 F.3d at

1217-18.

      Accordingly, substantial evidence supports the ALJ’s determination that

Smith was not disabled within the meaning of the Social Security Act.

      AFFIRMED.




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