                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 16 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



RICHARD DEAN JENKINS,                            No. 11-35863

              Plaintiff - Appellant,             D.C. No. 3:10-cv-00849-HA

  v.
                                                 MEMORANDUM *
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,

              Defendant - Appellee.



                  Appeal from the United States District Court
                            for the District of Oregon
                Ancer L. Haggerty, Senior District Judge, Presiding

                           Submitted November 7, 2012 **
                                 Portland, Oregon

Before: ALARCÓN, McKEOWN, and PAEZ, Circuit Judges.

       Richard Jenkins appeals from the district court’s decision affirming the

Commissioner’s denial of his applications for Social Security disability insurance




        *
             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).
benefits and Supplemental Security Income payments. Jenkins argues that the

ALJ’s determination that substance abuse was material to his disability was not

supported by substantial evidence and that the ALJ gave insufficient weight to the

opinion of his treating physician, Dr. Mihara. Reviewing de novo, we affirm.

         Jenkins “bears the burden of proving that [substance abuse] is not a

contributing factor material to his disability.” Parra v. Astrue, 481 F.3d 742, 748

(9th Cir. 2007). The ALJ properly conducted the five-step inquiry first without

separating out the impact of Jenkins’s drug addiction. See Bustamante v.

Massanari, 262 F.3d 949, 955 (9th Cir. 2001). After finding that Jenkins was

disabled, the ALJ conducted the inquiry again, this time evaluating whether

Jenkins would still be disabled absent substance abuse. See 20 C.F.R.

§ 404.1535(b). As the district court explained, Jenkins did not establish that his

physical impairments rendered him disabled absent substance abuse, and “[a]t best,

the evidence is inconclusive as to whether [Jenkins’s] mental impairments

remained disabling after he stopped abusing substances.” “[I]f evidence exists to

support more than one rational interpretation, we must defer to the Commissioner’s

decision.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.

2004).




                                            2
      Although the ALJ gave “significant weight” to Dr. Mihara’s November 2006

opinion, he gave only “little weight” to her April 2009 opinion. The latter opinion

was contradicted by the opinion of an examining psychologist. The ALJ gave

“‘specific and legitimate reasons’ supported by substantial evidence in the record”

for giving little weight to Dr. Mihara’s April 2009 opinion. See Lester v. Chater,

81 F.3d 821, 830 (9th Cir. 1995) (citation omitted).

      AFFIRMED.




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