                                                                              FILED
                           NOT FOR PUBLICATION                                 JUL 21 2010

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


SHANNON WIKOFF,                                  No. 08-36043

              Plaintiff - Appellant,             D.C. No. 1:08-cv-00048-CSO

  v.
                                                 MEMORANDUM*
MICHAEL J. ASTRUE, Commissioner of
the Social Security Administration General
Counsel,

              Defendant - Appellee.


                   Appeal from the United States District Court
                            for the District of Montana
                   Carolyn S. Ostby, Magistrate Judge, Presiding

                             Submitted July 16, 2010**
                                Seattle, Washington

Before: RYMER and N.R. SMITH, Circuit Judges, and HART, Senior District
Judge.***



        *
             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).
        ***
            The Honorable William Hart, Senior United States District Judge for
the Northern District of Illinois, sitting by designation.
      Shannon Wikoff appeals from the district court’s affirmance of the final

decision by the Commissioner of Social Security denying Wikoff’s application for

disability insurance benefits and supplemental security income payments. We

affirm.



                                          I

      Substantial evidence in the record supports the ALJ’s finding that Wikoff’s

mental impairments did not meet or equal the criteria of any impairment in the

Commissioner’s Listing of Impairments, 20 C.F.R. pt. 404, subpt. P, app. 1.

Although Dr. Dennis suggested Wikoff would have marked problems with

persistence, he stated that this was based upon Wikoff’s reports, which the ALJ did

not find credible. Because Wikoff did not contest the ALJ’s adverse credibility

finding before the district court, she is precluded from doing so on appeal. See

Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001). “Thus, the ALJ’s

adverse credibility determination supports the limited rejection of [Dr. Dennis’s]

opinion because it was primarily based on [Wikoff’s] subjective comments

concerning [her] condition.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir.

2008). And because Wikoff failed to show she had any marked limitations, she



                                         2
cannot establish that her impairments resulted in at least two of the B criteria. See

20 C.F.R. pt. 404, subpt. P, app. 1 §§ 12.04(B), 12.06(B), 12.08(B).



                                          II

      The ALJ provided “specific and legitimate” reasons for rejecting the opinion

of Dr. Van Dyk, which was contradicted by the opinion and findings of Dr. Mozer.

See Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). To the extent that Dr. Van

Dyk’s opinion was based on Wikoff’s subjective assertions, which were not found

credible, this was a specific and legitimate reason for the ALJ to reject the opinion.

See Tommasetti, 533 F.3d at 1041. Also, Dr. Van Dyk’s opinion was inconsistent

with Dr. Mozer’s findings, which indicated that Wikoff’s subjective complaints

were not as severe as alleged. “Where the opinion of the claimant’s treating

physician is contradicted, and the opinion of a nontreating source is based on

independent clinical findings that differ from those of the treating physician, the

opinion of the nontreating source may itself be substantial evidence; it is then

solely the province of the ALJ to resolve the conflict.” Andrews v. Shalala, 53

F.3d 1035, 1041 (9th Cir. 1995). Further, Dr. Van Dyk’s treatment notes – which

indicated that Dr. Van Dyk believed Wikoff was capable of going to college and




                                          3
finding appropriate employment after her alleged onset date – were inconsistent

with his May 2007 opinion.1



                                         III

      Although Dr. Dennis suggested that Wikoff would have difficulties with

consistency and sustainability, substantial evidence in the record supports the

ALJ’s conclusion that Wikoff was capable of engaging in unskilled work activities

on a regular and continuing basis. As the ALJ noted, Wikoff had relationships

with boyfriends and other friends; cared for her daughter bi-weekly, lived on her

own, drove, and shopped for groceries; and performed well on mental status

testing. Moreover, it’s reasonable to infer from the record that Wikoff was able to

perform substantial gainful activities while suffering mental impairments as severe

as those she suffered later, after her alleged onset date. See Batson v. Comm’r of

Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004) (“[T]he Commissioner’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 Commissioner’s decision.” (citation omitted)); cf. Gregory v. Bowen,



      1
       The ALJ also provided valid reasons for rejecting the non-medical sources’
opinions supporting Van Dyk’s May 2007 opinion.

                                          4
844 F.2d 664, 667 (9th Cir. 1988) (“[S]ubstantial evidence indicated that the

condition of Gregory’s back had remained constant for a number of years and that

her back problems had not prevented her from working over that time.”). Further,

the ALJ’s assessment of Wikoff’s residual functional capacity incorporated Dr.

Van Dyk’s and Dr. Mozer’s suggestions that Wikoff should avoid work that was

stressful or technical.

      AFFIRMED.




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