                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            NOV 07 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


AMY MARIE PHELPS,                                No.   16-16591

              Plaintiff-Appellant,               DC No. CV 15-00853 SPL

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

              Defendant-Appellee.


                    Appeal from the United States District Court
                             for the District of Arizona
                    Steven Paul Logan, District Judge, Presiding

                           Submitted October 13, 2017**
                             San Francisco, California

Before:      TASHIMA and BYBEE, Circuit Judges, and LEITMAN,*** District
             Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The panel unanimously finds this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
      ***
             The Honorable Matthew Frederick Leitman, United States District
Judge for the Eastern District of Michigan, sitting by designation.
      Appellant Amy Marie Phelps applied for Social Security disability insurance

benefits. She alleged a disability stemming from back and hip problems, as well as

depression and anxiety. An Administrative Law Judge (“ALJ”) found that her

mental impairments were not severe and that, although her physical impairments

were severe, she could still perform her past relevant work. The ALJ therefore

concluded she was not disabled and denied her application. In reaching this

conclusion, the ALJ discounted certain medical opinions.

      The ALJ’s denial of Phelps’ application was affirmed by the district court.

This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm.

      1.     Phelps had the burden to demonstrate that her mental impairments

were severe, Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012), and

significantly limited her ability to do basic work activities, 20 C.F.R. §

404.1520(c). The ALJ did not err in finding that Phelps failed to meet that burden

and, in doing so, discounting the opinions of Drs. Robert Marselle and Kara Cross

who each examined Phelps once, and two other non-examining physicians who

reviewed Phelps’ medical records. Among these opinions, there were material

conflicts regarding Phelps’ functional limitations.




                                           2
      The ALJ is tasked with resolving such conflicts and ambiguities in the

medical evidence. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). To

discount these conflicting opinions, the ALJ was required to “provid[e] specific

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

Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). “Substantial evidence is such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion. The evidence must be more than a mere scintilla but not necessarily a

preponderance.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)

(internal quotation marks and citations omitted). “The ALJ can meet this burden

by setting out a detailed and thorough summary of the facts and conflicting clinical

evidence, stating [his] interpretation thereof, and making findings.” Id. at 1041

(quoting Magallanes, 881 F.2d at 751). The ALJ’s “findings are upheld if

supported by inferences reasonably drawn from the record, and if evidence exists

to support more than one rational interpretation, we must defer to the [ALJ’s]

decision.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.

2004) (citations omitted).

      Here, the ALJ set out in detail the objective findings from the two mental

examinations conducted by Drs. Marselle and Cross, noting Phelps’ descriptions of

the various activities and relationships she was able to sustain and her ability to


                                           3
perform most of the cognitive tasks she was asked to complete. Based on these

results, the ALJ found Phelps had at most mild limitations and no episodes of

decompensation, and therefore concluded Phelps’ mental impairments were not

severe. See 20 C.F.R. §§ 404.1520a(c), (d)(1). The ALJ then discussed the other

evidence regarding Phelps’ mental impairments, none of which detailed

corresponding limitations or specialized treatment. Based on this evidence, the

ALJ gave little weight to Drs. Marselle and Cross’ opinions because they were not

consistent with their own objective findings, and were inconsistent with the record

as a whole. This was sufficient. See Batson, 359 F.3d at 1195 (ALJ may discredit

medical opinions that are unsupported by record as a whole or by objective

medical findings). The ALJ’s similar reason for discounting the opinions of the

two non-examining physicians was likewise sufficient.

      2.     The ALJ also did not err in discounting the opinion of Phelps’ treating

physician, Dr. Kenneth Lucero, in favor of the opinions of non-examining

physicians. Dr. Lucero’s opinion on Phelps’ physical limitations was contradicted

by the opinions of these non-examining physicians. In order to discount it, the

ALJ was thus required to provide “specific and legitimate reasons that are

supported by substantial evidence.” Bayliss, 427 F.3d at 1216. After detailing

Phelps’ diagnostic results and conservative treatment, and Dr. Lucero’s own notes,


                                         4
the ALJ discounted Dr. Lucero’s opinion because it was brief, conclusory, and

inadequately supported by the clinical findings, as well as inconsistent with both

Dr. Lucero’s own treatment records and the objective medical evidence as a whole.

This was sufficient. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002)

(“The ALJ need not accept the opinion of any physician, including a treating

physician, if that opinion is brief, conclusory, and inadequately supported by

clinical findings.”); see also Tommasetti, 533 F.3d at 1041 (“incongruity” between

a treating physician’s opinion on the patient’s limitations and the patient’s medical

records is a “specific and legitimate reason” for discounting that opinion). The

ALJ also discounted Dr. Lucero’s opinion because it was inconsistent with Phelps’

stated ability to sustain certain activities, which is itself a specific and legitimate

reason to discount a treating physician’s opinion. See Ghanim v. Colvin, 763 F.3d

1154, 1162 (9th Cir. 2014). Even if the ALJ erred by discounting Dr. Lucero’s

opinion on this basis, any error was harmless. See Carmickle v. Comm’r, Soc. Sec.

Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008).

       The judgment of the district court is AFFIRMED.




                                             5
                                                                              FILED
Phelps v. Berryhill, No. 16-16591
                                                                              NOV 07 2017
                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS
LEITMAN, District Judge, concurring in part and dissenting in part.

      I agree with the Court that the ALJ did not err in discounting the opinion of

Dr. Kenneth Lucero. However, I respectfully dissent from the Court’s

determination that the ALJ did not err in discounting the opinions of (1) examining

doctors Robert Marselle, Ph.D., and Kara Cross, Ph.D., and (2) reviewing doctors

David Biscardi, Ph.D, and Yanira Olaya, M.D. As the Court fairly notes, there

were conflicts among certain aspects of the opinions offered by these four mental

health professionals. But the opinions were consistent in one important respect:

Drs. Marselle, Cross, and Biscardi opined that Ms. Phelps was moderately limited

in maintaining regular attendance and performing work activities on a consistent

basis. And although Dr. Olaya did not opine on that precise point, he did conclude

that Ms. Phelps was moderately impaired in maintaining concentration,

persistence, and pace. “To reject an uncontradicted opinion of a[n] ... examining

doctor, an ALJ must state clear and convincing reasons that are supported by

substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). I

do not believe that the ALJ satisfied this standard with respect to his rejection of

the opinions of Drs. Marselle and Cross (as largely confirmed by Drs. Biscardi and

Olaya) that Ms. Phelps was moderately limited as described above.
