                                                                           FILED
                            NOT FOR PUBLICATION                             SEP 16 2011

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




                            FOR THE NINTH CIRCUIT



ANN LOUISE AARESTAD,                             No. 10-35925

              Plaintiff - Appellant,             D.C. No. 9:09-cv-00138-JCL

  v.
                                                 MEMORANDUM *
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Michael J. Astrue,

              Defendant - Appellee.



                    Appeal from the United States District Court
                            for the District of Montana
                  Jeremiah C. Lynch, Magistrate Judge, Presiding

                      Argued and Submitted August 29, 2011
                               Seattle, Washington

Before: HAWKINS, McKEOWN, and BEA, Circuit Judges.

       Ann Louise Aarestad, a 55-year-old former salesperson for an automotive

tool manufacturer, appeals the district court’s order granting summary judgment to

the Commissioner of Social Security (“Commissioner”). The Commissioner



        *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
denied Aarestad’s application for disabled widow’s insurance benefits 1 and

supplemental security income benefits under Titles II and XVI of the Social

Security Act. Because the parties are familiar with the facts, we repeat them here

only as necessary to explain our decision. We affirm.

      This court reviews de novo a district court’s order affirming an

administrative law judge’s (ALJ) denial of benefits. Tommasetti v. Astrue, 533

F.3d 1035, 1038 (9th Cir. 2008). This court must affirm the district court’s

decision if the ALJ applied the correct legal standards and substantial evidence

supports the decision. Id. Substantial evidence means “more than a mere

scintilla,” or “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401

(1971). The Commissioner’s findings “as to any fact, if supported by substantial

evidence, shall be conclusive.” 42 U.S.C. § 405(g).

      The ALJ had substantial evidence to support his findings. First, the ALJ

properly found that Aarestad’s testimony as to the nature and extent of her claimed

disability was not credible. The evidence showed that Aarestad worked only



      1
        As applicable here, widow’s insurance benefits are a survivor’s benefit
based on the widow’s disability and the deceased person’s insured status. 42
U.S.C. § 402(e)(1)(B)(ii). The widow need not be an insured in her own right, but
she does need to be “disabled.”

                                          2
sporadically before the alleged onset of disability (which suggests that her decision

not to work was not based on disability); Aarestad admitted to using her hands and

arms regularly in daily activities; and, the objective medical evidence did not

support her claims of disabling limitations.

      Second, the ALJ properly rejected the opinions of two of Aarestad’s treating

physicians, Drs. Terry Smith and Mark Askew. The opinions of these physicians

were contradicted by the report of the non-examining state agency physician who

testified Aarestad could perform a modified range of light work. Because of this

contradiction, the ALJ was required to give “specific and legitimate” reasons for

rejecting the treating physician’s opinions. Widmark v. Barnhart, 454 F.3d 1063,

1066–67 (9th Cir. 2006).

      The ALJ gave specific and legitimate reasons for rejecting Drs. Smith and

Askew’s opinions. First, the ALJ found that Dr. Smith’s opinions were

inconsistent with Aarestad’s own admitted daily activities and abilities and with

actions that Aarestad performed at the hearing. Second, the ALJ noted that Dr.

Smith’s report was internally inconsistent as to the extent to which Aarestad could

use her right hand. Third, the ALJ rejected Dr. Askew’s opinions because Dr.

Askew had relied heavily and uncritically on Aarestad’s subjective report of

symptoms and limitations. Finally, the ALJ noted that Dr. Askew had not treated


                                          3
Aarestad for fourteen years prior to Aarestad requesting Dr. Askew’s opinion.

This court has held that where the ALJ has determined that a claimant’s description

of her limitations was not entirely credible, the ALJ reasonably could discount a

physician’s opinion “that was based on those less than credible statements.” Bray

v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009).

      Third, the ALJ did not commit reversible error in determining Aarestad’s

severe impairments at step two of the sequential evaluation process. Aarestad

contends the ALJ erred by not including an anxiety disorder in the list of her severe

impairments. However, a physician’s assistant was the only person to diagnose

Aarestad with an anxiety disorder. Only licensed physicians, psychologists,

optometrists, and podiatrists can establish the presence of a “medically

determinable impairment.” 20 C.F.R. § 404.1513(a), (d).

      Aarestad also maintains that the ALJ should have categorized her chronic

obstructive pulmonary disease as a severe impairment. However, even assuming

that the ALJ erred in omitting chronic obstructive pulmonary disease as a severe

impairment, this error was harmless. There was no evidence that this impairment

would affect Aarestad’s ability to perform her past work as a salesperson.

      AFFIRMED.




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