                                                                            FILED
                            NOT FOR PUBLICATION                              OCT 26 2010

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




                            FOR THE NINTH CIRCUIT



KATRINA DITTO,                                   No. 10-35005

              Plaintiff - Appellant,             D.C. No. 3:08-cv-01016-BR

  v.
                                                 MEMORANDUM *
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,

              Defendant - Appellee.



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

                            Submitted October 8, 2010 **
                                Portland, Oregon

Before: TASHIMA, PAEZ and CLIFTON, Circuit Judges.

       Katrina Ditto (“Ditto”) appeals the district court’s judgment that affirmed a

final decision by the Commissioner of Social Security denying Ditto’s application

for disability insurance benefits under Title II of the Social Security Act. We have

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction pursuant to 28 U.S.C. § 1291, and we review de novo the district

court’s decision upholding the denial of benefits. Bray v. Comm’r of Soc. Sec.

Admin., 554 F.3d 1219, 1222 (9th Cir. 2009). We affirm.

      First, Ditto contends that the ALJ’s step-two determination excluding

diplopia as a severe impairment is not supported by substantial evidence. We have

defined the step-two inquiry as “a de minimis screening device to dispose of

groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). The

record clearly reveals that Ditto suffers from only “mild diplopia,” as diagnosed by

Drs. Syna and Schloesser. Ditto’s medical record, testimony and lay witness

evidence supported the ALJ’s finding that her diplopia impairment was

insufficient to pass the de minimis threshold of step two. Accordingly, substantial

evidence supports the ALJ’s finding that Ditto’s diplopia was not severe.

      Second, the ALJ provided “specific, cogent reasons” for discounting Ditto’s

subjective complaints of pain and other symptoms. See Bruton v. Massanari, 268

F.3d 824, 828 (9th Cir. 2001). The ALJ thoroughly discussed the medical and

other documentary evidence in the record and noted contradictions between Ditto’s

testimony regarding her daily life activities and the statements of Ditto’s husband.

This evidence was sufficient to support the ALJ’s determination that Ditto’s

subjective reporting was not entirely credible. See Bray, 554 F.3d at 1227 (“In


                                          2
reaching a credibility determination, an ALJ may weigh inconsistencies between

the claimant’s testimony and his or her conduct, daily activities, and work record,

among other factors.”).

      Third, Ditto contends that the ALJ erred in discrediting the testimony of her

lay witnesses. The ALJ provided germane reasons for giving the lay witness

testimony limited weight, noting inconsistencies in Ditto’s husband’s statements

regarding his wife’s level of functioning. See Bayliss v. Barnhart, 427 F.3d 1211,

1218 (9th Cir. 2005). Further, the ALJ noted medical evidence and other

documentary evidence, including treatment notes that described Ditto’s daily

activities, and determined that Ditto’s mother’s statements conflicted with the

medical evidence. See Lewis, 236 F.3d at 511 (“One reason for which an ALJ may

discount lay testimony is that it conflicts with medical evidence.”). Accordingly,

the ALJ did not err in discrediting Ditto’s lay witness testimony.

      Fourth, the ALJ did not fail to develop the record. The ALJ’s duty to

supplement the administrative record is triggered by ambiguous evidence, the

ALJ’s own finding that the record is inadequate or the ALJ’s reliance on an

expert’s conclusion that the evidence is ambiguous. Tonapetyan v. Halter, 242

F.3d 1144, 1150 (9th Cir. 2001). Upon review of the record, the ALJ found that it

was more than adequate to make an assessment of the severity of Ditto’s


                                          3
myasthenia gravis. Having reviewed the record, we agree with the ALJ’s

determination. Therefore, the record was not ambiguous or inadequate to trigger

the ALJ’s duty to further develop the record.

      Fifth, Ditto argues that the ALJ erred by propounding a vocational

hypothetical that conflicted with the residual functional capacity (“RFC”)

determination. In the RFC, the ALJ determined that Ditto’s diplopia excluded

tasks “requiring fine vision, more than occasional . . . upward gazing.”1 In the

hypothetical, the ALJ stated “[t]here should be only occasional upward gaze, and if

there is, there should be no fine vision.” Ditto contends that the RFC excluded any

task requiring fine vision, but the hypothetical excluded only tasks requiring both

upward gaze and fine vision. We do not agree that is the natural and reasonable

reading of the RFC. Although the RFC could have been better worded, we fairly

construe it to exclude only excessive upward gazing, not fine vision in general.

This construction is supported by an earlier passage in which the ALJ stated: “The

medical treatment record indicated the claimant experiences . . . double vision

when she performs one activity. Specifically, when the claimant gazes upward, she


      1
        The entire RFC states: “The claimant had the residual functional capacity
to perform sedentary to light work which accommodates her fatigue, with the
following modifications: precluded from tasks requiring fine vision, more than
occasional 1/3 of a work day upward gazing; limit climbing stairs to occasional;
avoid climbing ladders, ropes, and scaffolds.”

                                          4
has this symptom . . . . [But] [t]here is no credible evidence that she has this

problem on a chronic or frequent basis outside of looking upward.” Thus, when

the RFC is properly construed, the hypothetical does not conflict with the RFC.

We conclude that the hypothetical was proper.

AFFIRMED.




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