                                                                            FILED
                             NOT FOR PUBLICATION                             JAN 03 2014

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



                              FOR THE NINTH CIRCUIT


BARBARA JEAN NATHAN,                             No. 12-35797

                Plaintiff - Appellant,           D.C. No. C11-6054-JPD

  v.
                                                 MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of the Social Security Administration,

                Defendant - Appellee.


                     Appeal from the United States District Court
                       for the Western District of Washington
                    James P. Donahue, Magistrate Judge, Presiding

                       Argued and Submitted November 6, 2013
                                Seattle, Washington

Before: SCHROEDER and PAEZ, Circuit Judges, and BENITEZ, District Judge.**

       Barbara Jean Nathan appeals the district court’s judgment affirming the

denial of disability benefits by the Commissioner of the Social Security

Administration. We affirm.

            *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Roger T. Benitez, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
       We review de novo a district court’s order upholding a decision by the

Social Security Commissioner that denies benefits to an applicant. Batson v.

Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). “The

Commissioner’s decision must be affirmed . . . if supported by substantial

evidence, and if the Commissioner applied the correct legal standards.” Id.

      1. Nathan challenges the determination of the Administrative Law Judge

(ALJ) that medical improvement occurred because the ALJ failed to consider that

Nathan’s original condition also caused subsequent related medical problems in her

feet, legs and lumbar spine. This argument was not raised in the district court and

is therefore waived. See Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997).

      2. Even were this argument not waived, the ALJ conducted the medical

improvements analysis in accordance with the applicable regulations. Under the

regulations that govern the disability determination process, an ALJ undertaking a

continuing disability determination is required to consider whether there is any

improvement for those impairments that were “present at the time” of the last

finding of disability. 20 C.F.R. §§ 404.1594(b)(1), 416.994(b)(1)(i). The ALJ

therefore properly considered whether Nathan’s recognized medically

determinable impairments had improved since the initial disability finding.

Similarly, the ALJ properly restricted the initial residual functional capacity (RFC)


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assessment to consideration of only the medical improvements to her preexisting

medically determinable impairments. See 20 C.F.R. § 404.1594(f)(4) and 20

C.F.R. § 416.994(b)(1)(iii). At a later step in the analysis, the ALJ correctly

considered Nathan’s new impairments in determining whether all of her current

impairments in combination were severe. 20 C.F.R. § 404.1594(f)(6);

416.994(b)(1)(v). The ALJ therefore properly followed the regulatory directive

and did not consider Nathan’s additional medical concerns as part of the medical

improvement determination.

      Substantial evidence also supports the ALJ’s determination that Nathan

experienced medical improvement. Although the ALJ accorded minimal weight to

the opinions of two of Nathan’s treating physicians, Drs. Johnson and Deacon, this

finding is supported by substantial evidence. These medical opinions were

contradicted by other medical records provided by Nathan, and the ALJ thoroughly

explained her reasoning for resolving these inconsistencies against Nathan. An

ALJ is responsible for resolving conflicts and inconsistencies in the record, and

where, as here, the decision is supported by specific, cogent reasons, we must

uphold it. Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006). Moreover, the

ALJ was not required to consider the records or opinions of the doctors treating

Nathan’s subsequent back and spine conditions as these conditions were not


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present at the time of her initial disability determination and thus were not relevant

to determining medical improvement. See 20 C.F.R. § 404.1594(b)(1).

      We therefore agree with the district court that the ALJ did not err in

determining that Nathan had experienced medical improvement.

      3. Substantial evidence also supports the ALJ’s RFC finding, which did not

encompass Nathan’s alleged post traumatic stress disorder (PTSD), dissociative

amnesia or cognitive disorder as medically determinable impairments. The ALJ

provided specific and cogent reasons for rejecting Nathan’s diagnoses of PTSD

and dissociative amnesia, including that they were provided by a nurse practitioner

and refuted by examining physician Dr. Choi. See 20 C.F.R. §§ 404.1513(a),

416.913(a). Additionally, the ALJ clearly articulated the reasons for rejecting

Nathan’s cognitive disorder diagnosis. Where an ALJ provides clear and

convincing reasons for rejecting the diagnosis of a physician, it should be upheld.

See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996).

      Substantial evidence also supports the ALJ’s decision not to incorporate

Nathan’s claims of chronic pain in the RFC finding. Nathan provided neither

evidence of how this pain had a functional effect on her ability to perform work,

nor evidence to refute the conclusion that the pain could be managed with proper

medication. See Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 600-01


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(9th Cir. 1999). We therefore conclude that substantial evidence supported the

ALJ’s RFC finding.

      4. Substantial evidence supports the ALJ’s credibility determination. While

“questions of credibility and resolution of conflicts in the testimony are functions

solely of the Secretary,” the ALJ’s credibility findings must be supported by

specific, cogent reasons. See Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.

1982)(quoting Waters v. Gardner, 452 F.2d 855, 858 n.7 (9th Cir. 1971)); Greger,

464 F.3d at 972. Here, the ALJ provided clear and specific reasons for questioning

Nathan’s credibility that are supported by substantial evidence, including

contradictions with Nathan’s own testimony and her medical records. We

therefore find no error in the ALJ’s decision to discount Nathan’s credibility.

      5. During the disability determination process, a vocational expert may be

used to assist the ALJ in determining whether a claimant, in light of her RFC, can

engage in some type of substantial gainful activity that exists in significant

numbers in the national economy. See Roberts v. Shalala, 66 F.3d 179, 184 (9th

Cir. 1995). Nathan argues that the hypothetical question the ALJ posed to the

vocational expert should have included all of the moderate limitations identified in

Section I of the Mental Residual Functional Capacity Assessment (MRFCA) form.

The ALJ, however, did not err in excluding these limitations. As instructed in the


                                     Page 5 of 6
Social Security Administration Program Operations Manual System (POMS),

Section I of the MRFCA is not an RFC assessment. POMS DI

24510.060(B)(4)(a). Instead, the ALJ is to use Section III of the form in

determining a claimant’s RFC. Id. Here, the ALJ correctly included all limitations

identified in Section III of the MRFCA. We therefore affirm the district court’s

ruling that the ALJ did not err in excluding some of the moderate limitations

identified in Section I of the MRFCA from the hypothetical question posed to the

vocational expert. See Osenbrock v. Apfel, 240 F.3d 1157, 1163-64 (9th Cir. 2001)

(holding that an ALJ’s hypothetical need not include properly rejected limitations).

             AFFIRMED.




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