                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                         MAY 6 2020
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

MICHAEL EBLEN,                                   No.   18-35193

                Plaintiff-Appellant,             D.C. No. 6:16-cv-01678

 v.
                                                 MEMORANDUM*
ANDREW SAUL, Commissioner of Social
Security,

                Defendant-Appellee.

                    Appeal from the United States District Court
                             for the District of Oregon
                    Michael McShane, District Judge, Presiding

                              Submitted May 4, 2020**


Before: FARRIS, LEAVY, TROTT, Circuit Judges.

      Michael Eblen appeals the district court’s affirmance of the Commissioner

of Social Security’s denial of his application for disability insurance benefits under

Title II of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
and 42 U.S.C. § 405(g). We review de novo, Attmore v. Colvin, 827 F.3d 872, 875

(9th Cir. 2016), and we affirm.

      The ALJ properly evaluated the medical opinion evidence and provided

specific and legitimate reasons supported by substantial evidence to discount the

opinions of Eblen’s treating physicians. Trevizo v. Berryhill, 871 F.3d 664, 675

(9th Cir. 2017). The ALJ properly gave little weight to Dr. Steven Maness’s

opinion that Eblen was disabled because it was inconsistent with the objective

medical evidence, including Dr. Maness’s own treatment notes, and because the

record indicated that Dr. Maness had recommended conservative treatment. To

support this assessment, the ALJ referred to Dr. Maness’s treatment notes

indicating “relatively normal examination findings.” Though Dr. Maness noted

that Eblen had a positive Straight Leg Raise Test in February 2013, Dr. Maness

noted 4/5 strength in Eblen’s hamstring and 5/5 strength in the rest of his leg

muscles in that same visit. Eblen performed the Straight Leg Raise Test on many

other occasions, both prior to and subsequent to the February 2013 examination,

and his test results were negative on every other occasion. The ALJ also

permissibly concluded that Dr. Maness’s opinion was inconsistent with his

otherwise conservative recommendations of physical therapy and medication. See

Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir. 1995).




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      The ALJ also gave specific and legitimate reasons for assigning little weight

to treating physician Dr. C. Mitchell Finch’s opinion that Eblen was disabled. See

Trevizo, 871 F.3d at 675. Substantial evidence supports this finding, including Dr.

Finch’s own relatively normal exam findings across six visits, during which Dr.

Finch noted negative straight leg tests at every exam in which this measure was

performed, and 5/5 strength in Eblen’s extremities. The ALJ’s concluded that Dr.

Finch formed his opinion without reference to the longitudinal record and based it

largely on Eblen’s subjective complaints “in lieu of objective exam findings.” That

conclusion was a rational interpretation of the medical record. See Bayliss v.

Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (substantial evidence supports an

ALJ’s decision to discount an opinion that is based on subjective complaints which

are otherwise not supported by clinical evidence). Dr. Finch did not examine

Eblen between authoring his identical April 2013 and March 2014 opinions,

further suggesting that these opinions were “inadequately supported by clinical

findings.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).

      The ALJ properly discounted Dr. Finch’s opinion that Eblen was “medically

disabled” because the ultimate determination of medical disability is reserved for

the Commissioner. 20 C.F.R. § 404.1527(d)(1). Additionally, the ALJ did not err

in giving Dr. Finch’s opinion little weight because of Eblen’s inconsistent

statements about Dr. Finch’s recommendation regarding surgery. The record is


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unclear regarding whether Eblen opted against surgery, as Dr. Finch’s notes

suggest, or whether Dr. Finch informed Eblen that surgery was not an option for

him, as Eblen testified. It is within the ALJ’s discretion to resolve such

ambiguities in the record. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir.

1989). The ALJ’s decision must be affirmed where, as here, the evidence is

“susceptible to more than one rational interpretation.” Id.

      The ALJ properly gave great weight to consultative physician Dr. Martin

Kehrli’s opinion that Eblen was not disabled. Though an ALJ may not rely on the

opinion of a non-examining physician alone to reject the opinion of treating

physicians, see Revels v. Berryhill, 874 F.3d 648, 664 (9th Cir. 2017), an ALJ does

not err when she gives weight to a non-examining physician’s opinion that is

supported by other evidence in the record, including objective medical evidence

and inconsistencies between the claimant’s testimony and his statements to

physicians, see Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995). Here,

substantial evidence supported the ALJ’s consideration of Dr. Kehrli’s opinion.

See Magallanes, 881 F.2d at 752. The ALJ properly gave great weight to Dr.

Kehrli’s opinion because it was based on a longitudinal review of the record,

which included the relatively normal examination findings from Dr. Maness and

Dr. Finch. The ALJ also properly gave great weight to Dr. Kehrli’s opinion

because Dr. Kehrli considered the consistency between the medical evidence and


                                          4
Eblen’s reported activities of daily living, including Eblen’s ability to

independently care for his pet and drive multiple times weekly to visit family and

friends. Eblen’s objections to Dr. Kehrli’s qualifications were raised for the first

time on appeal and are therefore waived. See Greger v. Barnhart, 464 F.3d 968,

973 (9th Cir. 2006).

      The ALJ gave specific, clear, and convincing reasons to discount Eblen’s

symptom testimony because she reasonably concluded that the record contradicted

Eblen’s alleged severity of his symptoms. See Orn v. Astrue, 495 F.3d 625, 639

(9th Cir 2007). The ALJ properly considered Eblen’s “prior inconsistent

statements concerning the symptoms, and other testimony by the claimant that

appears less than candid.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir.

2008). The ALJ noted several inconsistencies between Eblen’s testimony and the

evidence in the record, including the objective medical evidence, evidence of

conservative treatment, Eblen’s daily activities which displayed a higher level of

functioning than his symptoms would otherwise suggest, and inconsistencies

between statements Eblen made to his providers and statements he made in support

of his long-term disability insurance application. By detailing these

inconsistencies, which are supported by substantial evidence, the ALJ provided

clear and convincing reasons to discount Eblen’s testimony. See id.

      AFFIRMED.


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