                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 19 2010

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




                             FOR THE NINTH CIRCUIT



ETHELMARIE D. HUBBARD,                           No. 09-35389

               Plaintiff - Appellant,            DC No. 08-1446 CRD

  v.
                                                 MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
Social Security Administration,

               Defendant - Appellee.



                     Appeal from the United States District Court
                       for the Western District of Washington
                    Carolyn R. Dimmick, District Judge, Presiding

                              Submitted March 8, 2010 **
                                 Seattle, Washington

Before:        TASHIMA, FISHER, and BERZON, Circuit Judges.

       Ethelmarie Hubbard appeals the district court’s judgment affirming the

denial by the Social Security Commissioner (“Commissioner”) of Hubbard’s

applications for disability insurance benefits and supplemental security income

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-403, 1381-

1383f. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      We review de novo the district court’s order upholding the denial of benefits.

Howard ex rel Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2003). We must

uphold the Commissioner’s decision if it is supported by substantial evidence and

if the Commissioner applied the correct legal standards. Id.

      Hubbard contends that the administrative law judge (“ALJ”) erred at Step 2

of the sequential evaluation process in finding that her knee injury, obesity, and

hip, back, and shoulder pain were not severe impairments. Because Hubbard

prevailed at Step 2 and because the ALJ considered these alleged impairments later

in the sequential analysis, we conclude that any error in omitting the alleged

impairments at Step 2 was harmless. See Lewis v. Astrue, 498 F.3d 909, 911 (9th

Cir. 2007); Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005).

      Hubbard also contends that the ALJ erred at Steps 4 and 5 in finding her

“not entirely credible” and in improperly weighing the medical evidence.

      We conclude that the ALJ’s credibility finding is supported by specific, clear

and convincing reasons, including that Hubbard’s testimony about her depression

symptoms was vague and that her daily activities and the objective medical

evidence were inconsistent with her testimony about the severity of her symptoms.


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An ALJ may properly consider these factors in assessing a claimant’s credibility.

See Tommasetti v. Astrue, 533 F.3d 1035, 1039-40 (9th Cir. 2008); Burch, 400

F.3d at 681.

      We also conclude that the ALJ did not err in evaluating the medical opinion

evidence. The ALJ gave specific, legitimate reasons, supported by substantial

evidence in the record, for according less weight to the doctors who opined that

Hubbard was limited to sedentary work or “severely limited.” See Lester v.

Chater, 81 F.3d 821, 830-31 (9th Cir. 1995); Magallanes v. Bowen, 881 F.2d 747,

751 (9th Cir. 1989). Moreover, the ALJ ultimately found that Hubbard’s abilities

were more limited than some other doctors opined. We conclude that the

conflicting medical opinion evidence in the record is at least susceptible to the

ALJ’s interpretation. See Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir.

1995) (“We must uphold the ALJ’s decision where the evidence is susceptible to

more than one rational interpretation.” (citing Magallanes, 881 F.2d at 750)).

      Affirmed.




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