                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              MAR 25 2010

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

KEVIN L. WILLIAMS,                               No. 09-35532

             Plaintiff - Appellant,              D.C. No. 2:08-cv-00133-CI

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

             Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Eastern District of Washington
                  Cynthia Imbrogno, Magistrate Judge, Presiding

                      Argued and Submitted March 10, 2010
                              Seattle, Washington

Before: FISHER and BERZON, Circuit Judges, and SNOW, District Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable G. Murray Snow, United States District Judge for the
District of Arizona, sitting by designation.


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      Kevin Williams appeals the district court’s grant of summary judgment to

the Commissioner in a challenge under Title XVI of the Social Security Act. “[W]e

review de novo the district court’s order upholding a decision of the Commissioner

denying benefits to an applicant. The Commissioner’s decision must be affirmed

by us if supported by substantial evidence, and if the Commissioner applied the

correct legal standards.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190,

1193 (9th Cir. 2004) (internal citations omitted). We affirm.

      1. There is substantial evidence to support the Administrative Law Judge’s

(“ALJ”) determination that Williams was not credible, namely Williams’

inconsistent statements concerning his substance abuse and the effects of his

impairment. Williams denied using alcohol, tobacco, or drugs on his first

emergency room visit and again denied drug use or a DUI arrest to Dr. Arnold.

Williams later told a doctor that he drank “several beers a day” and admitted past

marijuana and cocaine use, as well as participation in substance abuse treatment as

a result of being charged with a DUI. It was not erroneous for the ALJ to view

these inconsistencies as undermining Williams’ overall credibility. See Robbins v.

Soc. Sec. Admin., 466 F.3d 880, 884 (9th Cir. 2006) (“[C]onflicting or inconsistent

testimony concerning alcohol use can contribute to an adverse credibility

finding.”); Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (upholding an


                                         2
adverse credibility finding where a claimant made inconsistent statements to her

doctors about her alcohol and drug use).

      The ALJ also properly relied on the fact that Williams left his last long-term

job to care for his daughter, not due to his impairments. Moreover, Williams had

suffered petit mal seizures daily that were “exactly like all his past seizures” for

several months before he stopped working, during which he could “usually

function.” This evidence undermined Williams’ claim that his impairments now

preclude him from sustaining full time work.

      2. The ALJ properly rejected the opinion of Dr. Arnold based on “specific

and legitimate reasons that are supported by substantial evidence,” Bayliss v.

Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). Dr. Arnold’s assessment of

Williams’ functional capacity was contradicted by the opinions of Williams’ other

doctors. Three doctors found similar cognitive limitations, but only Dr. Arnold

believed Williams’ limitations precluded him from working.

      The ALJ also rejected Dr. Arnold’s functional capacity assessment as

inconsistent with his own observations that Williams displayed “adequate

functioning with regard to short and long term memory,” “marginal to adequate

concentration abilities,” and “at least low average intellectual functioning.”

Likewise, the ALJ found Dr. Arnold’s assessment of numerous marked limitations


                                           3
inconsistent with Williams’ ability to engage in “all tasks of daily living, other than

driving,” as well as his ability “to work in the past with his memory problems,

which are long term.”

      Finally, Dr. Arnold’s diagnosis of dysthymic and somatoform disorders was

undermined by Dr. McKnight’s affirmative finding of “no indication of depression,

anxiety, or panic,” other examining or treating physicians’ failure to diagnose, or

even suspect, psychological disorders, and the fact that Williams “is not currently

receiving treatment or using medication for psychological symptoms.”

      For the foregoing reasons, we reject Williams’ argument that the

hypothetical posed to the vocational expert failed to include relevant functional

limitations. As the ALJ relied on specific, convincing reasons for rejecting Dr.

Arnold’s residual function assessment, the hypothetical correctly incorporated all

the limitations included in Williams’ residual functional capacity as determined by

the ALJ and supported by the medical record. See Tackett v. Apfel, 180 F.3d 1094,

1100 (9th Cir. 1999).

      AFFIRMED.




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