                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 17 2011

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




                            FOR THE NINTH CIRCUIT



CHRISTINE L. WILLIAMSON,                         No. 10-35730

              Plaintiff - Appellant,             D.C. No. 3:09-cv-06156-BR

  v.
                                                 MEMORANDUM *
COMMISSIONER OF SOCIAL
SECURITY,

              Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Oregon
                     Anna J. Brown, District Judge, Presiding

                        Argued and Submitted June 8, 2011
                                Portland, Oregon

Before: FISHER, GOULD, and PAEZ, Circuit Judges.

       Christine Williamson (“Williamson”) appeals the district court’s judgment

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




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Williamson’s application for supplemental security income under Title XVI of the

Social Security Act.1 We have jurisdiction pursuant to 28 U.S.C. § 1291.

      The administrative law judge (“ALJ”) did not err in rejecting Williamson’s

testimony. If a claimant presents objective medical evidence of an underlying

impairment and there is no evidence of malingering, “‘the ALJ can reject the

claimant’s testimony about the severity of her symptoms only by offering specific,

clear and convincing reasons for doing so.’” Lingenfelter v. Astrue, 504 F.3d

1028, 1036 (9th Cir. 2007) (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th

Cir. 1996)). Although not every reason given by the ALJ met this standard, it was

nonetheless proper for the ALJ to discount Williamson’s testimony based on Dr.

Eckstein’s observation that there was reason to suspect that Williamson

exaggerated her symptoms. See Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th

Cir. 2001) (holding that a credibility determination based on, among other things, a

tendency to exaggerate, was supported by substantial evidence).

      Nor did the ALJ err in affording less than full weight to the testimony of lay

witness Diane Brending (“Brending”). “If an ALJ disregards the testimony of a lay

witness, the ALJ must provide reasons ‘that are germane to each witness.’” Bruce



      1
       Because the facts are known to the parties, we repeat them only as
necessary to explain our decision.

                                         2
v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) (quoting Nguyen v. Chater, 100

F.3d 1462, 1467 (9th Cir. 1996)). That much of Brending’s opinion was based on

Williamson’s subjective complaints was a germane reason for rejecting that

testimony. Also germane to rejection in part of Brending’s testimony was the

ALJ’s determination that objective evidence did not support that Williamson

suffered limitations to the extent testified to by Brending.2

      The ALJ did not err in giving less than full weight to the opinion of Dr.

Eckstein. “The ALJ is responsible for resolving conflicts in the medical record,”

Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008),

and “‘must provide clear and convincing reasons for rejecting the uncontradicted

opinion of an examining physician,’” Widmark v. Barnhart, 454 F.3d 1063, 1066

(9th Cir. 2006) (quoting Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). In

explaining the weight given to Dr. Eckstein’s report, the ALJ noted that Dr.

Eckstein “acknowledged that her conclusions were tentative and might over-

represent the degree of pathology” because objective testing showed exaggeration

by Williamson. ER 16. This reason was a clear and convincing ground for not

fully crediting Dr. Eckstein’s opinion.


      2
         Because the ALJ did not err in giving limited weight to Brending’s
testimony, the ALJ’s conclusion that Williamson does not meet the criteria of any
of the listed impairments, see 20 C.F.R. § 416.920(d), was also not erroneous.

                                           3
      However, the ALJ erred by not considering Williamson’s concentration,

pace, and persistence limitations—as attested to by Brending and Dr. Eckstein—in

making a residual functional capacity (“RFC”) assessment and in questioning the

vocational expert (“VE”). In determining a claimant’s RFC, an ALJ must assess

all the relevant evidence, including medical reports and witnesses’ descriptions of

limitation, to determine what capacity the claimant has for work. See 20 C.F.R.

§ 416.945(a). Similarly, hypothetical questions that an ALJ poses to a VE to

determine what work a claimant can perform “must include ‘all of the claimant’s

functional limitations, both physical and mental’ supported by the record.”

Thomas v. Barnhart, 278 F.3d 947, 956 (9th Cir. 2002) (quoting Flores v. Shalala,

49 F.3d 562, 570–71 (9th Cir. 1995)). Brending testified that Williamson suffered

pace and persistence problems, and Dr. Eckstein’s testing results indicated that

Williamson suffered from low psychomotor speed. Consistent with this evidence,

the ALJ found that Williamson had moderate limitations of concentration,

persistence, and pace. ER 13, 16–17. But the ALJ did not account for these non-

exertional limitations when he assessed Williamson’s RFC or when he posed

hypothetical questions to the VE about the type of work that Williamson was able

to perform. This oversight was error. See Valentine v. Comm’r of Soc. Sec.

Admin., 574 F.3d 685, 690 (9th Cir. 2009) (“The hypothetical an ALJ poses to a


                                          4
vocational expert, which derives from the RFC, ‘must set out all the limitations

and restrictions of the particular claimant.’ Thus, an RFC that fails to take into

account a claimant’s limitations is defective.” (quoting Embrey v. Bowen, 849 F.2d

418, 422 (9th Cir. 1988))).

      We reverse the judgment of the district court and remand with directions that

it remand this case to the Commissioner for further administrative proceedings. In

those proceedings, the ALJ shall include Williamson’s concentration, pace, and

persistence limitations in its RFC assessment and its inquiries to the VE.

      REVERSED AND REMANDED.




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