                                                                              FILED
                           NOT FOR PUBLICATION                                OCT 24 2014

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



                            FOR THE NINTH CIRCUIT


LEROY D. LINDQUIST, JR.,                         No. 13-35418

              Plaintiff - Appellant,             D.C. No. 3:11-cv-05803-RBL

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

              Defendant - Appellee.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                      Argued and Submitted October 9, 2014
                              Seattle, Washington

Before: PAEZ, BYBEE, and CALLAHAN, Circuit Judges.

       Plaintiff-Appellant Leroy Lindquist (“Lindquist”) appeals the district court’s

decision to affirm the Social Security Commissioner’s (“Commissioner”) denial of

supplemental security income (“SSI”) benefits. Lindquist argues that the



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Administrative Law Judge (“ALJ”) erred by: (1) improperly evaluating medical

opinion evidence; (2) improperly discounting the credibility of Lindquist’s

testimony; (3) improperly discounting a lay witness statement; (4) failing to

include all of Lindquist’s limitations in his residual functional capacity (“RFC”)

determination; and (5) relying on Vocational Expert (“VE”) testimony that

Lindquist could perform other work even though that testimony was based on an

erroneous RFC. In the alternative, Lindquist requests that we remand for rehearing

based on new medical evidence submitted to the Appeals Council after the ALJ

hearing.

      We review de novo the district court’s order upholding a decision by the

Commissioner to deny benefits to an applicant. Valentine v. Comm’r Soc. Sec.

Admin., 574 F.3d 685, 690 (9th Cir. 2009). We affirm the Commissioner’s

decision if it applies the correct legal standards and is supported by substantial

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

2004).

      1.     The ALJ’s evaluation of medical opinion evidence from Lindquist’s

treating, examining, and non-examining physicians was supported by substantial

evidence. He thoroughly summarized the treating physicians’ records

documenting Lindquist’s back and shoulder pain, and he concluded from the


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records that Lindquist’s medical conditions were controlled or controllable with

treatment.

      Further, when the ALJ accorded a physician’s opinion diminished weight, he

provided specific and legitimate reasons for doing so. Inconsistency between a

physician’s opinion and the claimant’s daily activities suffices as a specific and

legitimate reason for discounting the physician’s opinion if supported by

substantial evidence from the record as a whole. See Morgan v. Comm’r of Soc.

Sec. Admin., 169 F.3d 595, 600-02 (9th Cir. 1999). The ALJ reasonably found that

examining physician Dr. Schneider’s conclusion that Lindquist would not be able

to maintain attendance or focus in the workplace was inconsistent with Lindquist’s

daily activities and treatment regimen. The ALJ’s decision to give greater weight

to the non-examining physician, whose conclusions were more consistent with the

medical record evidence, was also reasonable. We therefore conclude that the

ALJ’s evaluation of the medical opinion evidence was supported by substantial

evidence.

      2.     When a claimant presents objective medical evidence of an underlying

severe impairment, the ALJ may “reject the claimant’s testimony about the severity

of her symptoms only by offering specific, clear and convincing reasons for doing

so.” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (citation and


                                          3
internal quotation marks omitted); see also SSR 96-7p. In finding that a claimant

is not credible, the ALJ may consider the claimant’s reputation for truthfulness,

inconsistency within his testimony, inconsistency between testimony and conduct,

daily activities, and testimony from other sources. See Smolen v. Chater, 80 F.3d

1273, 1284 (9th Cir. 1996).

      Here, the ALJ provided specific, clear, and convincing reasons for finding

Lindquist’s testimony not credible. First, he stated that Lindquist’s “actual daily

activities readily refute” his alleged limitations, noting, for example, that Lindquist

testified to scuba diving 20 to 30 times since obtaining certification in 2003. He

also pointed to Lindquist’s ability to do household chores and his enrollment in

community college as evidence that his limitations were not as pronounced as his

testimony suggested. Second, the ALJ cited Lindquist’s conservative treatment

regimen as evidence that his physical and mental impairments were “moderate at

most.” The ALJ determined that Lindquist’s conditions were well controlled by

medication and did not preclude him from work activities. Therefore, the ALJ’s

adverse credibility determination was supported by substantial evidence from the

record.

      3.     The ALJ provided germane reasons for discounting the lay witness

statement submitted by Lindquist’s friend. To discount lay witness opinion


                                           4
evidence, an ALJ must “give reasons germane to each witness.” Stout v. Comm’r,

Soc. Sec. Admin., 454 F.3d 1050, 1053-54 (9th Cir. 2006) (explaining that the

ALJ’s reasons for rejecting lay testimony must be “specific”). The ALJ gave Ms.

Radcliff’s testimony “little weight” because her statements about the severity of his

pain and the frequency of his breaks were inconsistent with Lindquist’s testimony,

with the medical record, and with her and Lindquist’s recent travel and scuba

diving activities. The ALJ did not err in giving the lay witness’s statement limited

weight in light of the record as a whole.

      4.     Because the ALJ properly considered Lindquist’s medical records,

testimony, and lay witness statements in determining Lindquist’s RFC and

additional functional limitations, the RFC was supported by substantial evidence.

Moreover, because the VE testified that an individual with Lindquist’s RFC could

perform other work in the national or local economy, the ALJ met his burden of

demonstrating that Lindquist was not disabled. See 20 C.F.R. § 416.966.

      5.     “Where the Appeals Council was required to consider additional

evidence, but failed to do so, remand to the ALJ is appropriate so that the ALJ can

reconsider its decision in light of the additional evidence.” Taylor v. Comm’r of

Soc. Sec. Admin., 659 F.3d 1228, 1233 (9th Cir. 2011). Remand on the basis of

new evidence is not proper here, however, because the new evidence Lindquist


                                            5
cites does not relate back to the relevant period of disability. The records at issue

denote a disability onset date of September 20, 2010, which falls outside the period

adjudicated by the ALJ.

      AFFIRMED.




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