                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUN 19 2014

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

ROBERT L. FEBACH,                                No. 12-36061

              Plaintiff - Appellant,             D.C. No. 6:11-cv-00070-DWM

  v.
                                                 MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security Administration,

              Defendant - Appellee.


                    Appeal from the United States District Court
                            for the District of Montana
                    Donald W. Molloy, District Judge, Presiding

                        Argued and Submitted May 13, 2014
                               Seattle, Washington

Before: O’SCANNLAIN, BERZON, and TALLMAN, Circuit Judges.

       Robert L. Febach appeals the district court’s order affirming the Social

Security Commissioner’s denial of his application for disability insurance benefits.

We affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      (1)    The Administrative Law Judge (“ALJ”) provided “persuasive,

specific, valid” reasons for giving limited weight to the Department of Veterans

Affairs’ (VA) determination that Febach has a 20% disability rating for depression.

McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). Although Febach

was diagnosed with depression, that diagnosis alone is insufficient for finding a

“severe” impairment, as required by the social security regulations. 20 C.F.R.

§ 404.1520(a)(4)(ii). There was sufficient evidence in the record for the ALJ to

conclude that Febach’s depression is not “severe,” including reports by at least

three of Febach’s physicians suggesting that his impairment is “non-severe.”

      (2)    Substantial evidence supports the ALJ’s adverse credibility

determination. Most notably, the fact that Febach spent ninety days bow hunting

in the year prior to his ALJ hearing supported the ALJ’s conclusion that Febach’s

“statements concerning the intensity, persistence and limiting effects of [his]

symptoms are not credible.” Febach testified that the bulk of his camping days

were spent driving or resting in the camper, and that he used a modified bow on

account of his inability to lift a standard one. But Febach’s hunting activities could

also reasonably suggest that he has the ability and motivation to plan and execute a

lengthy excursion in a remote location; sit in a car and drive some distance; stand

for substantial periods; and lift objects necessary for camping by oneself. These


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activities support the ALJ’s conclusion regarding Febach’s credibility as to the

functional limitations caused by his physical injuries, chronic pain, and depression.

      “When evidence reasonably supports either confirming or reversing the

ALJ’s decision, we may not substitute our judgment for that of the ALJ.” Batson

v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004). We therefore

affirm the ALJ’s adverse credibility determination.

      (3)    In light of the adverse credibility determination and the medical

evidence, the ALJ’s residual functional capacity determination was not in error.

Febach contends that the ALJ erred by not including in the residual functional

capacity determination the effects of Febach’s chronic pain and depression, in

particular his alleged inability to consistently show up for work. Although there

was medical evidence demonstrating that Febach suffered from both chronic pain

and depression, the ALJ’s reasonable adverse credibility determination provided

“clear or convincing reasons for rejecting [Febach’s] claims,” Gallant v. Heckler,

753 F.2d 1450, 1456 (9th Cir. 1984), as to the intensity, persistence and limiting

effects of his symptoms, including his inability to show up for work regularly.

Therefore, the ALJ did not err in failing to incorporate those limitations into the

residual functional capacity determination, or in failing to consider the vocational




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expert’s testimony that a person who could not attend work regularly would not be

able to find substantial gainful employment in the national economy.

      AFFIRMED.




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