                                                                             FILED
                             NOT FOR PUBLICATION
                                                                              NOV 02 2016
                      UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT



LORNA R. DORRELL,                                 No.    14-17373

              Plaintiff-Appellant,                D.C. No. 2:13-cv-01227-CMK

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

              Defendant-Appellee.


                     Appeal from the United States District Court
                        for the Eastern District of California
                     Craig Kellison, Magistrate Judge, Presiding

                            Submitted October 19, 2016**
                              San Francisco, California

Before: THOMAS, Chief Judge, and BEA and IKUTA, Circuit Judges.

      Lorna Dorrell appeals the district court’s order granting the Social Security

Commissioner’s cross-motion for summary judgment and denying disability




      *
             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).
insurance benefits under Title II of the Social Security Act. We have jurisdiction

pursuant to 28 U.S.C. § 1291. We affirm the district court judgment.

      First, substantial evidence supported the administrative law judge’s (“ALJ”)

determination that Dorrell’s depression was not medically severe. Although the

record established that Dorrell had a long history of depression, the record also

established that her depression was treatable and responsive to medication.

      Second, the ALJ gave specific, clear, and convincing reasons for finding

Dorrell less than credible as to the severity of her migraine headaches. In particular,

the ALJ noted that the migraine symptoms Dorrell described appeared exaggerated

given her daily activities and the significant gaps in treatment for Dorrell’s migraines

as reflected in the record. See Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007)

(listing factors “that an ALJ may consider in weighing a claimant’s credibility” to

include inconsistencies between testimony and conduct, daily activities, and

unexplained, or inadequately explained, failure to seek treatment).

      Third, the ALJ fairly represented Dorrell’s sister’s testimony. Taken as a

whole, Dorrell’s sister’s observations corroborated other accounts of Dorrell’s daily

activities and did not necessarily support greater residual functional limitations. See

Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (“We must uphold the ALJ’s

decision where the evidence is susceptible to more than one rational interpretation.”).



                                            2
          Therefore, substantial evidence supported the ALJ’s decision to exclude

    limitations related to depression and migraines in the hypothetical posed to the

    vocational expert and when assessing Dorrell’s residual functional capacity. See

    Osenbrock v. Apfel, 240 F.3d 1157, 1163 (9th Cir. 2001) (“An ALJ must propose a

    hypothetical that is based on medical assumptions supported by substantial evidence

    in the record that reflects each of the claimant’s limitations.”). Because the medical

    opinions that described Dorrell’s severe migraines were based on Dorrell’s subjective

    reports, no reasonable ALJ would credit the medical opinions after finding Dorrell’s

    subjective reports of severity not credible. Any error was harmless. Stout v. Comm’r

    of Soc. Sec., 454 F.3d 1050, 1056 (9th Cir. 2006) (explaining that error is harmless if

    the reviewing court “can confidently conclude that no reasonable ALJ, when fully

    crediting the testimony, could have reached a different disability determination”).



          In sum, the district court properly granted the Social Security Commissioner’s

    cross-motion for summary judgment.

          AFFIRMED.



1




                                                3
                                                                           FILED
Lorna R. Dorrell v Colvin 14-17373
                                                                            NOV 02 2016
THOMAS, Chief Judge, dissenting:                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


Although the ALJ’s findings that Dorrell’s depression was not severe

enough to prevent her from working was supported by substantial evidence and

free from legal error, the ALJ did not explain the decision to exclude Dorrell’s

migraine headaches from the limitations in the residual functional capacity in spite

of evidence in the medical records indicating that Dorrell had severe migraine

headaches. This failure to provide a reasoned basis for rejecting two treating

physicians’ opinions regarding Dorrell’s headaches constituted legal error. See

Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (“[T]he Commissioner must

provide ‘clear and convincing reasons’ for rejecting the uncontradicted opinion of

an examining physician.”). Furthermore, unless a reviewing court can “confidently

conclude that no reasonable ALJ, when fully crediting the testimony, could have

reached a different disability determination,” the error cannot be harmless. Stout v.

Comm’r of Soc. Sec., 454 F.3d 1050, 1056 (9th Cir. 2006). Indeed, the error was

not harmless here.

      Therefore, I respectfully dissent.
