                                                                              FILED
                           NOT FOR PUBLICATION                                NOV 21 2012

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



                            FOR THE NINTH CIRCUIT


ANNA T. FLEMING,                                 No. 11-35997

              Plaintiff - Appellant,             D.C. No. 3:10-cv-00990-HZ

  v.
                                                 MEMORANDUM*
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,

              Defendant - Appellee.


                   Appeal from the United States District Court
                            for the District of Oregon
                   Marco A. Hernandez, District Judge, Presiding

                           Submitted August 24, 2012**


Before: HUG, FARRIS, and LEAVY, Circuit Judges.

       Anna Fleming appeals the district court’s order affirming the decision of the

administrative law judge (“ALJ”) denying her application for Supplemental



        *
             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).
Security Income benefits. We review de novo the district court’s order affirming

the ALJ’s denial of benefits. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir.

2008). We may reverse the Commissioner’s decision only if it is not supported by

substantial evidence or is based on legal error. Robbins v. Soc. Sec. Admin., 466

F.3d 880, 882 (9th Cir. 2006). We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.1

      Fleming argues that the ALJ erred by improperly rejecting her testimony

without providing specific reasons for doing so. “In assessing the credibility of a

claimant’s testimony regarding subjective pain or the intensity of symptoms, the

ALJ engages in a two-step analysis.” Molina v. Astrue, 674 F.3d 1104, 1112 (9th

Cir. 2012). First, the ALJ must determine if there is medical evidence of an

impairment which could reasonably be expected to produce the symptoms alleged.

Id. If the claimant is able to provide this evidence, and there is no evidence of

malingering, the ALJ must then give specific, clear and convincing reasons to

reject the claimant’s testimony. Id. The ALJ properly conducted the two-step

analysis and reasoned that Fleming’s testimony was unreliable because it was

inconsistent with medical evidence, lay witness testimony, and the record as a



      1
       Because the parties are familiar with the facts underlying this appeal, we do
not recount the facts here.
                                          2
whole. Therefore, the ALJ correctly provided specific, clear and convincing

reasons for rejecting Fleming’s testimony. See id. at 1113.

      Fleming contends that the ALJ erred by discounting the contradicted

medical opinion of Dr. Rose, an examining physician, without articulating clear

and convincing reasons. The uncontradicted opinion of an examining physician

may only be rejected for clear and convincing reasons, but when that opinion has

been contradicted, the ALJ may reject it by providing “specific and legitimate

reasons that are supported by substantial evidence in the record.” Lester v. Chater,

81 F.3d 821, 830-31 (9th Cir. 1995). “A physician’s opinion of disability premised

to a large extent upon the claimant’s own accounts of his symptoms and limitations

may be disregarded where those complaints have been properly discounted.”

Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999) (internal

quotation marks omitted). The ALJ reasoned that Dr. Rose’s opinion was

internally inconsistent and that it was based on Fleming’s subjective complaints.

Therefore, the ALJ provided specific and legitimate reasons supported by

substantial evidence in the record for discounting Dr. Rose’s medical opinion. See

Morgan, 169 F.3d at 602-03.

      Fleming also claims that the ALJ erred by discounting the medical opinion

of Dr. Rawlins, another examining physician, without articulating clear and


                                         3
convincing reasons. Because Dr. Rawlins’ opinion was contradicted, the ALJ must

have provided specific and legitimate reasons supported by substantial evidence in

the record. See Lester, 81 F.3d at 830-31. An ALJ need not accept a physician’s

opinion if it is inadequately supported by clinical findings. Bayliss v. Barnhart,

427 F.3d 1211, 1216 (9th Cir. 2005). The ALJ reasoned that Dr. Rawlins based his

medical opinion on Fleming’s subjective complaints and that there was little

clinical support for those findings. Therefore, the ALJ provided specific and

legitimate reasons supported by substantial evidence in the record for discounting

Dr. Rawlins’ medical opinion. See id.; Morgan, 169 F.3d at 602.

      Fleming argues that the ALJ erred in step three of the sequential evaluation

process by finding that Fleming’s mental impairments did not meet or equal a

Listing under 12.04, 12.06, or 12.08. The burden is on the claimant to provide

evidence that her impairments meet or equal a Listing at step three of the

sequential evaluation process. Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir.

2005). Fleming based her argument that she meets a Listing entirely on the

properly rejected medical opinion of Dr. Rawlins. Therefore, Fleming failed to

meet her burden at step three of the sequential evaluation process. See id.

      Fleming claims that the ALJ erred by rejecting lay witness testimony

without giving specific and legitimate reasons germane to each witness. Lay


                                          4
witness testimony is competent evidence which cannot be discounted without

comment. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009). In order to

disregard the testimony of a lay witness, the ALJ is required to provide specific

reasons that are germane to each witness. Id. Contrary to Fleming’s argument, the

ALJ did not discount the lay witness’s testimony. The ALJ relied in part on that

testimony to find Fleming’s statements not credible. Therefore, the ALJ was not

required to provide specific and germane reasons for discounting the lay witness

testimony. See id.

      Fleming argues that the ALJ erred by failing to include relevant symptoms

in the Residual Functional Capacity assessment. The ALJ must consider all

relevant evidence when making a Residual Functional Capacity determination.

Robbins, 466 F.3d at 883. However, “[p]reparing a function-by-function analysis

for medical conditions or impairments that the ALJ found neither credible nor

supported by the record is unnecessary.” Bayliss, 427 F.3d at 1217. The

impairments Fleming claims were omitted from the assessment arose exclusively

from the properly discounted medical opinions of Drs. Rose and Rawlins and from

Fleming herself. It was unnecessary for the ALJ to include these impairments in

his Residual Functional Capacity assessment since he had already found them to be

neither credible nor supported by the record. See id.


                                          5
      Finally, Fleming argues that the ALJ erred by posing an incomplete

hypothetical question to the Vocational Expert at step five of the sequential

evaluation process. The hypothetical question must be derived from the Residual

Functional Capacity assessment and “must set out all of the limitations and

restrictions of the particular claimant.” Valentine v. Comm’r Soc. Sec. Admin., 574

F.3d 685, 690 (9th Cir. 2009). The ALJ’s question to the Vocational Expert

incorporated the Residual Functional Capacity assessment and took into account all

of the credible limitations which were supported by evidence in the medical record.

See id. at 694.

      AFFIRMED.




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