                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            NOV 21 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


EMMA KLEIN,                                      No. 16-16353

              Plaintiff-Appellant,               D.C. No. 2:15-cv-02584-CKD

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

              Defendant-Appellee.


                  Appeal from the United States District Court
                       for the Eastern District of California
                 Carolyn K. Delaney, Magistrate Judge, Presiding

                          Submitted November 17, 2017**
                             San Francisco, California

Before: CLIFTON and FRIEDLAND, Circuit Judges, and GLEASON,*** 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 concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

      ***
              The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
      Emma Klein appeals the district court’s decision affirming the denial of her

application for disability insurance benefits under Title II of the Social Security

Act. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1.    The administrative law judge (ALJ) did not commit reversible error in

determining that Ms. Klein’s subjective complaints were not wholly credible.

When a claimant presents objective evidence of an underlying impairment, and

there is no evidence of malingering, “the ALJ can 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)

(quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)). The ALJ provided

at least three reasons for discounting Ms. Klein’s subjective complaints—taken

together, they are clear and convincing. First, the ALJ found Ms. Klein’s

allegations inconsistent with the objective medical evidence. See 20 C.F.R. §

404.1529(c)(2); Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). Second, the

ALJ found Ms. Klein’s allegations inconsistent with her daily activities. See

Molina v. Astrue, 674 F.3d 1104, 1112–13 (9th Cir. 2012). Third, the ALJ found




                                           2
Ms. Klein’s allegations inconsistent with the medical opinion evidence. See

Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008).1

2.    The ALJ did not err by finding that Ms. Klein had the residual functional

capacity (RFC) to perform sedentary work with certain limitations. The court must

affirm the ALJ’s RFC determination if his decision is supported by substantial

evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). Here, the

medical opinion evidence supports the RFC assessment. The ALJ relied on the

uncontradicted opinions of two state agency medical consultants who opined that

Ms. Klein could perform a wide range of exertional work. The ALJ also relied on

two state agency psychological consultants who opined that Ms. Klein could

perform simple tasks in a setting with low social demands. And he relied on a

consultative psychiatric examiner, Dr. Whitten, who concluded that Ms. Klein

could perform simple, repetitive tasks and accept instructions from supervisors. Dr.

Whitten did opine that Ms. Klein’s symptoms may impact her ability to work

reliably and consistently, but the ALJ accurately summarized Dr. Whitten’s

opinion. The ALJ reasonably applied the combination of five expert opinions in

forming his RFC assessment.


      1
              The ALJ provided a fourth reason: Ms. Klein did not seek treatment
for her symptoms between May 18, 2008 and February 9, 2012. We do not address
this basis for the ALJ’s finding because the other three bases are sufficient.
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      The medical record evidence also supports the ALJ’s conclusion that Ms.

Klein could at least perform sedentary work. Ms. Klein’s cardiac treatment reports

showed that she was stable post-surgery. The ALJ found that Ms. Klein’s cardiac

examinations were within normal limits. Ms. Klein does not challenge this finding.

Nor does she challenge the ALJ’s finding that Ms. Klein’s INR results (a blood test

to measure clotting time) were in therapeutic range. And in July, August, and

September 2013, Ms. Klein’s cardiologist reported that she was “able to perform

her daily activities without any specific limiting symptoms.”

      The ALJ did not err in excluding Ms. Klein’s purported need to lie down

from the RFC assessment. In determining a claimant’s RFC, an ALJ is not required

to incorporate testimony found to be not credible. Batson v. Comm’r of Soc. Sec.

Admin., 359 F.3d 1190, 1197 (9th Cir. 2004). As explained above, the ALJ found

Ms. Klein’s subjective complaints not fully credible.

3.    The ALJ did not fail to fully and fairly develop the record regarding Ms.

Klein’s coronary impairment. When a claimant is not represented by counsel, “it is

incumbent upon the ALJ to scrupulously and conscientiously probe into, inquire

of, and explore for all the relevant facts.” Higbee v. Sullivan, 975 F.2d 558, 561

(9th Cir. 1992) (quoting Cox v. Califano, 587 F.2d 988, 991 (9th Cir. 1978)).

Pursuant to the Listings of Impairments, ALJs are directed to wait until a cardiac


                                          4
impairment is stable before making a determination. 20 C.F.R. Pt. 404, Subpt. P,

App. 1, § 4.00(B)(4)(a). The ALJ relied on cardiac examination records conducted

months after Ms. Klein’s surgery. These records expressly stated that Ms. Klein’s

cardiac impairment was stable.

      The ALJ did not fail to develop the record by disregarding cardiac test

results. All of the records cited by Ms. Klein were attached to the ALJs decision,

and there is no evidence that any record was ignored. Furthermore, each of the

records cited by Ms. Klein contain evidence supporting the ALJ’s findings. Thus,

substantial evidence supports the ALJs evaluation of Ms. Klein’s coronary

impairment. See Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014).

4.    The vocational expert’s testimony constitutes substantial evidence to support

the ALJ’s finding of non-disability. When posing a hypothetical to a vocational

expert, an ALJ “need not include all claimed impairments,” but “he must make

specific findings explaining his rationale for disbelieving any of the claimant’s

subjective complaints not included in the hypothetical.” Light v. Soc. Sec. Admin.,

119 F.3d 789, 793 (9th Cir. 1997). Here, the ALJ explained his rationale for

discounting Ms. Klein’s subjective complaints. He also reasonably interpreted the

testimony of all three psychological experts. And there was no error due to

inconsistency between the vocational expert’s answers and the Dictionary of


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Occupational Titles because the ALJ determined that there was a basis for relying

on the expert. See Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007).

      AFFIRMED.




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