                            NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                         MAR 9 2020
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

LARRY C. TOULOU,                                 No.   18-35294

                Plaintiff-Appellant,             D.C. No. 2:17-cv-00057-RHW

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

                Defendant-Appellee.

                    Appeal from the United States District Court
                      for the Eastern District of Washington
                    Robert H. Whaley, District Judge, Presiding

                             Submitted March 5, 2020**

Before: FARRIS, TROTT, and SILVERMAN, Circuit Judges.

      Larry C. Toulou appeals the district court’s affirmance of the Commissioner

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

supplemental security income under Titles II and XVI of the Social Security Act.

We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We review


      *
             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).
de novo, Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 2016), and we affirm.

      The ALJ provided clear and convincing reasons supported by substantial

evidence for discounting the April 2015 opinion, and giving partial weight to the

May 2015 opinion, of Dr. Moyer. See Trevizo v. Berryhill, 871 F.3d 664, 675 (9th

Cir. 2017). The ALJ properly discounted Dr. Moyer’s opinions as to exertional

and postural limitations because they were inconsistent with Toulou’s own

testimony concerning his physical limitations. See Rollins v. Massanari, 261 F.3d

853, 856 (9th Cir. 2001) (ALJ may properly reject a treating physician’s

assessment of limitations that is inconsistent with the claimant’s level of activity

and own reports of limitations).

      The ALJ did not fail to recognize the nature of Dr. Moyer’s relationship with

Toulou as a treating physician. The ALJ acknowledged the treating nature of the

relationship, the duration, and addressed the supportability of the opinions by

referencing the treatment records relevant to range of motion and strength in the

left shoulder. As to Toulou’s argument that the ALJ did not address Dr. Moyer’s

statement that Toulou was capable of low stress jobs, because stress aggravates

pain, or Dr. Moyer’s check box indicating 4 or more absences a month, the ALJ is

not required to discuss every piece of evidence. Hiler v. Astrue, 687 F.3d 1208,

1212 (9th Cir. 2012); see also Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir.

2002) (holding that an ALJ need not accept the opinion of any physician, including


                                           2                                    18-35294
a treating physician, if that opinion is brief, conclusory, and inadequately

supported by clinical findings).

      The ALJ’s determination, based on the vocational expert’s testimony, that

Toulou could return to his past relevant work as a gaming monitor as generally

performed was supported by substantial evidence. An ALJ may use either the

“actually performed test” or “generally performed test” when evaluating a

claimant’s ability to perform past work. Stacy v. Colvin, 825 F.3d 563, 569 (9th

Cir. 2016). The vocational expert testified that Toulou could perform the job of

gaming monitor both as actually performed and generally performed. The

Dictionary of Occupational Titles description of the job contains no requirement

that the employee make arrests or detain individuals and further supports the

conclusion that Toulou could perform the job as generally performed. Toulou had

the burden at step four of showing that he could no longer perform his past relevant

work as generally performed, and he did not meet that burden. See Pinto v.

Massanari, 249 F.3d 840, 844 (9th Cir. 2001) (“At step four, claimants have the

burden of showing that they can no longer perform their past relevant work.”).

      This matter does not merit remand under sentence six of 42 U.S.C. § 405(g)

based on the later award of benefits, because the later award is not inconsistent and

not material evidence in regard to the denial at issue here, which occurred nearly

two years prior to the later award. The later award also included an onset date of


                                          3                                     18-35294
February 2017, which is eighteen months after the ALJ’s decision was issued in

August 2015, and was based on subsequent medical evidence. See Bruton v.

Massanari, 268 F.3d 824, 827 (9th Cir. 2001) (a later award based on different

medical evidence and a different time period was not inconsistent and did not

require remand).

      AFFIRMED.




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