                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 21 2010

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




                            FOR THE NINTH CIRCUIT



LAURAL LEMKE,                                    No. 09-35379

              Plaintiff - Appellant,             D.C. No. 3:07-cv-01363-HU

  v.
                                                 MEMORANDUM *
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,

              Defendant - Appellee.



                   Appeal from the United States District Court
                            for the District of Oregon
                   Michael W. Mosman, District Judge, Presiding

                              Submitted May 4, 2010 **
                                 Portland, Oregon

Before: KLEINFELD, BEA and IKUTA, Circuit Judges.




       The ALJ’s determination that Lemke’s psychological impairment was not

severe is supported by substantial evidence. Burch v. Barnhart, 400 F.3d 676, 679

        *
             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).
(9th Cir. 2005). The ALJ properly relied on the opinion of the state agency’s

evaluating psychological consultant, Dr. Anderson, which was consistent with the

other medical evidence in the record. Tonapetyan v. Halter, 242 F.3d 1144, 1149

(9th Cir. 2001). Moreover, because Lemke’s failure to seek psychiatric treatment

was “unexplained or inadequately explained,” it constituted a proper basis to

discredit her allegation of a severe mental impairment. See Smolen v. Chater, 80

F.3d 1273, 1284 (9th Cir. 1996). Because the evidence of Lemke’s mental

impairment was not ambiguous or inadequate, the ALJ had no duty to develop the

record further. Mayes v. Massanari, 276 F.3d 453, 459–60 (9th Cir. 2001).

      The ALJ’s failure to document specific findings in his decision with respect

to the “B criteria” was not erroneous in these circumstances. Per the applicable

post-2000 Social Security regulations, 20 C.F.R. §§ 404.1520a(e), 416.920a(e)

(2005), ALJs are no longer required to attach a specific psychiatric review

technique form when evaluating the severity of a claimant’s mental impairments;

while the present regulations require adjudicators to document their findings using

the special technique, they give ALJs greater discretion in deciding how to publish

those findings. Cf. Gutierrez v. Apfel, 199 F.3d 1048, 1051 (9th Cir. 2000),

superseded by regulation, 20 C.F.R. § 404.1520a (2001). In this case, it is

legitimate to infer that the ALJ incorporated Dr. Anderson’s documentation of the


                                         2
“B criteria” findings by crediting Dr. Anderson’s opinion and stating that it was

“essentially uncontroverted,” and hence not rebutted by any other medical

evidence in the record. See Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir.

1989). The ALJ reviewed and discussed Lemke’s mental history, and took into

account Lemke’s mental impairment at each step of the disability analysis.

      Contrary to Lemke’s assertion, a vocational expert is not required in every

case where a claimant exhibits non-exertional limitations. See Hoopai v. Astrue,

499 F.3d 1071, 1076 (9th Cir. 2007). In this case, because the grids adequately

reflected Lemke’s residual functional capacity, testimony of a vocational expert

was unnecessary. See id.

      We conclude that the ALJ’s reference to “Rule 201.XX” was a harmless

typographical error. The ALJ determined that Lemke was 42 years old, limited to

sedentary work, able to communicate in English, and had a limited education;

given this description, it is clear that the ALJ intended to reference Rule 201.24.

See 20 C.F.R. Pt. 404, Subpt. P, App. 2, Table No. 1, Rule 201.24.

      Although the record does not show that Lemke inconsistently reported her

illegal drug use, the ALJ’s seven other reasons for making an adverse credibility

determination were both clear and convincing and supported by substantial

evidence. See Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995).


                                           3
       Because the ALJ rejected Stone’s lay testimony at least in part for the same

reasons he discounted Lemke’s allegations, we likewise uphold this determination.

Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009).

Moreover, the ALJ’s reasons for rejecting Stone’s testimony were particular to

Stone. Id.

       Lemke provides no legal basis for her claim that the ALJ erred by not

seeking her treating physicians’ opinions regarding whether she had a listed

impairment. While the ALJ may contact medical sources to clarify ambiguities in

documentation, SSR 96-5p, at *2, it is the ALJ, and not a claimant’s treating

physician, who is ultimately responsible for determining whether a claimant is

entitled to disability benefits, see id.

       Lemke’s remaining arguments fail for lack of factual support. Lemke’s

claims that the ALJ neglected to consider her impairments in combination, and that

the ALJ inadequately evaluated whether her impairments combined to equal a

listing, are not reflected in the ALJ’s decision, which shows that the ALJ’s review

was proper in both respects. There is also no factual support for Lemke’s assertion

that the limitations purportedly prescribed in Dr. Wu’s note (which is not contained

in the record) are inconsistent with the ALJ’s RFC assessment.

       AFFIRMED.


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