                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUL 25 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JON JEFFERY HERRING,                             No.   16-35794

              Plaintiff-Appellant,               D.C. No. 6:15-cv-01453-CL

 v.
                                                 MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,

              Defendant-Appellee.


                    Appeal from the United States District Court
                             for the District of Oregon
                    Mark D. Clarke, Magistrate Judge, Presiding

                             Submitted July 23, 2018 **


Before: TROTT, SILVERMAN, and TALLMAN, Circuit Judges,

      Jon Herring appeals the district court’s order affirming the Social Security

Administration’s denial of his applications for Social Security and Supplemental

Security Income disability benefits. We have jurisdiction pursuant to 28 U.S.C. §

      *
             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).
1291. We review the district court’s order de novo and the agency’s decision for

substantial evidence. Garrison v. Colvin, 759 F.3d 995, 1009–10 (9th Cir. 2014).

We affirm.

      The ALJ provided clear and convincing reasons supported by substantial

evidence for giving less weight to the opinion of Dr. Dodson, a treating physician.

Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). The opinion was a cursory

check-the-box opinion that failed to provide any functional analysis in the

available comment sections, did not cite to and was not supported by objective

findings in Dr. Dodson’s medical notes, and was not supported by other objective

evidence or the record as a whole. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th

Cir. 2008) (allowing an ALJ to give less weight to a questionnaire opinion that is

based on a claimant’s subjective statements and is inconsistent with the treatment

records); Orn, 495 F.3d at 631 (providing that an ALJ may give less weight to an

opinion that is not “well-supported by medically acceptable clinical and laboratory

diagnostic techniques” or is “inconsistent with other substantial evidence in [the]

case record”) (quoting 20 C.F.R. § 404.1527(d)(2)); Thomas v. Barnhart, 278 F.3d

947, 957 (9th Cir. 2002) (holding that an ALJ may give less weight to a treating

opinion that is “brief, conclusory, and inadequately supported by clinical

findings”); Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1998) (holding that an


                                          2
ALJ may reject a retrospective opinion that conflicts with medical evidence in the

record).

      Contrary to Herring’s claim, the ALJ did not reject the opinion of Dr. Nolan,

who examined Herring one time at the request of the state agency. The ALJ

accepted the opinion with two modifications supported by Herring’s testimony.

Consistent with Herring’s testimony, the ALJ found that Herring could

occasionally lift 25 pounds, instead of the 20 pounds recommended by Dr. Nolan.

The ALJ also found that Herring could walk or stand for four hours, instead of the

two hours recommended by Dr. Nolan. To address Dr. Nolan’s concern that flares

in arthritis in Herring’s big toe joints could limit Herring’s ability to stand or walk,

the ALJ added two additional limits to the residual functional capacity assessment.

Consistent with Herring’s testimony and the medical evidence, the ALJ found that

Herring could change positions at will throughout the work day and could spend

the majority of his time seated when he experienced foot pain. The ALJ gave

sufficient reasons for altering Dr. Nolan’s assessment, and the findings are

supported by Herring’s testimony and the medical record.

      The ALJ gave specific, clear and convincing reasons supported by

substantial evidence for discounting Herring’s testimony that his back symptoms,

including weakness and atrophy in his leg, had returned a week after back surgery


                                            3
and that he needed crutches to walk. Molina v. Astrue, 674 F.3d 1104, 1112 (9th

Cir. 2012). The testimony was inconsistent with the statements Herring made to

his treating doctors after surgery and with the post-surgical objective findings of

Dr. Hauck, the treating surgeon, and Dr. Nolan, the examining physician. Id.

(noting that inconsistent statements may provide substantial evidence to support an

adverse credibility determination); Carmickle v. v. Comm’r, Soc. Sec. Admin., 533

F.3d 1155, 1161 (9th Cir. 2008) (holding that “[c]ontradiction with the medical

record is a sufficient basis for rejecting the claimant’s subjective testimony”).

      The ALJ also gave a specific, clear and convincing reason supported by

substantial evidence for not accepting Herring’s testimony that his back and foot

problems had significantly reduced the time that Herring could work. The

testimony was inconsistent with Herring’s other testimony and financial business

evidence. Molina, 674 F.3d at 1112 (noting that inconsistent statements may

provide substantial evidence to support an adverse credibility determination). The

ALJ’s finding that Herring continued to work at the same level that he worked

prior to his back problems and alleged onset date is supported by Herring’s

testimony, business income evidence, and tax returns.

      Finally, the ALJ was not required to include properly rejected opinion

evidence or testimony in the hypothetical questions posed to the vocational expert.


                                           4
Bayliss v. Barnhart, 427 F.3d 1211, 1217–18 (9th Cir. 2005) (holding that an ALJ

may rely on the vocational expert’s testimony if the hypothetical question includes

all of the credible limitations supported by substantial evidence).

      AFFIRMED.




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