                                                                           FILED
                            NOT FOR PUBLICATION                             APR 05 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



PAUL L. RAMIREZ,                                 No. 08-17591

              Plaintiff - Appellant,             D.C. No. 2:07-cv-01787

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

              Defendant - Appellee.


                    Appeal from the United States District Court
                             for the District of Arizona
                     Susan R. Bolton, District Judge, Presiding

                             Submitted March 12, 2010**
                              San Francisco, California

Before: HALL, NOONAN, and CALLAHAN, Circuit Judges.

       Ramirez filed an application for disability insurance benefits based on

Irritable Bowel Syndrome ('IBS') and depression, and an Administrative Law

Judge ('ALJ') held that Ramirez was not disabled for purposes of the Social

        *
             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).
Security Act. The Appeals Council denied review. Ramirez sought review in the

United States District Court for the District of Arizona, which affirmed. The

district court had jurisdiction pursuant to 42 U.S.C. y 405(g). This court has

jurisdiction pursuant to 28 U.S.C. y 1291, and we also affirm.

       The ALJ determined that Ramirez had the residual functional capacity

('RFC') to perform a significant range of light worµ, including worµing as a

cashier or janitor. The ALJ stated that the Vocational Expert testified that there

were 5,000 cashier jobs in Arizona and 230,000 nationwide and that there were

1,000 janitor jobs in Arizona and 20,000 nationwide. The Vocational Expert

provided these number based on a hypothetical individual of Ramirez's age,

education, and worµ experience who needed five or fewer bathroom breaµs a day.

       The ALJ's conclusions were supported by substantial evidence. The ALJ

fulfilled its duties to maµe a 'function-by function' analysis of Ramirez's RFC as

required by 20 C.F.R. y 404.1545 and Social Security Ruling 96-8p. The ALJ

considered all of Ramirez's physical, mental, and other limitations before

concluding that Ramirez retained the capacity for a significant range of light worµ.

He considered at length whether IBS-related impairments, including the frequency

and severity of Ramirez's symptoms, would permit Ramirez to worµ a full-time

job.


                                          2
      Although the ALJ did not explicitly state the number of bathroom breaµs

Ramirez would need to taµe over the course of a worµ day, our review of the

record indicates that the ALJ's conclusions were based upon a finding that Ramirez

required five or fewer bathroom breaµs a day. The ALJ also credited Ramirez's

wife's testimony, which indicated that Ramirez needed to use the bathroom up to

five times a day.

      Although Ramirez and his treating physician, Dr. Asin, stated that Ramirez

needed to use the bathroom up to fifteen times a day, the ALJ provided clear and

convincing reasons for discrediting these statements. Accordingly, he did not need

to factor this higher frequency of bathroom breaµs into his RFC analysis. Bayliss

v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) ('Preparing a function-by-

function analysis for the medical conditions or impairments that the ALJ found

neither credible nor supported by the record is unnecessary.').

      It may be true that the frequency of an individual's IBS-related symptoms

sometimes can be demonstrated only by that individual's subjective complaints.

However, Ramirez's statements regarding the severity of his symptoms are

inconsistent with Dr. Asin's treatment notes and Ramirez's wife's testimony. Dr.

Asin's notes indicate that three Percocet a day controlled Ramirez's pain and

stopped loose stools, and that Morphine, Paxil and Lorcet, were also effective.


                                          3
When Ramirez followed a gluten-free diet, his diarrhea decreased to twice per day.

Dr. Asin's notes report that by September 2004, Ramirez's symptoms had

improved overall and by November 2004 were 'stable.' Since late 2004, he has

had very little treatment.

      Moreover, in addition to testifying that Ramirez needed to use the bathroom

up to five times a day, Ramirez's wife testified that he was able to care for his

stepchild, drive, prepare meals, care of his personal needs, mow the lawn, shop for

food, and perform household chores. See Burch v. Barnhart, 400 F.3d 676, 680-81

(9th Cir. 2005)(discrediting subjective complaints based upon claimant's

'reasonably active lifestyle'); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir.

2001) (same); Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989) (same).

      Because Dr. Asin's statement that Ramirez required up to fifteen bathroom

breaµs a day derived primarily from Ramirez's discredited subjective complaints,

the ALJ also properly discredited Dr. Asin's statement.1 Andrews v. Shalala, 53

F.3d 1035, 1043 (9th Cir. 1995) ('[A]n opinion of disability premised to a large


      1
        We need not resolve whether the ALJ needed to provide 'clear and
convincing' or merely 'specific and legitimate' reasons for rejecting Dr. Asin's
statements about the frequency and severity of Ramirez's IBS symptoms, because
the reasons set forth by the ALJ were clear and convincing. See Bayliss, 427 F.3d
at 1216 (holding that discrepancies between physician's statements regarding
severity of plaintiff's impairments and his clinical notes were clear and convincing
reasons for rejecting statements).

                                           4
extent upon the claimant's own accounts of his symptoms and limitations may be

disregarded, once those complaints have themselves been properly discounted.');

see also Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009).

      AFFIRMED.




                                        5
                                                                            FILED
Ramirez v. Astrue, No. 08-17591                                              APR 05 2010

                                                                         MOLLY C. DWYER, CLERK
NOONAN, Circuit Judge, dissenting:                                        U.S . CO U RT OF AP PE A LS




      The µey issue was the number of bathroom breaµs Ramirez needed. The

ALJ accepted the wife's estimate; not Ramirez's. Given the reluctance a husband

might have to maµe a report to his wife on his trips to the toilet, the ALJ's source

was dubious. In the absence of other evidence, we are compelled to accept

Ramirez's testimony of 15 trips per day maµing the VE's job estimate untenable.
