                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 10 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



CYNTHIA D. BROWN,                                No. 09-17076

              Plaintiff - Appellant,             D.C. No. 2:08-CV-00901-FJM

  v.
                                                 MEMORANDUM *
MICHAEL J. ASTRUE,
Commissioner of Social Security,

              Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Arizona
                   Frederick J. Martone, District Judge, Presiding

                           Submitted December 6, 2010 **
                             San Francisco, California

Before: HUG, D.W. NELSON, MCKEOWN, Circuit Judges.

       Cynthia Brown appeals the district court’s order denying her request to




        *
          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).

                                          1
vacate the Social Security Administration’s decision that she is not eligible for

disability benefits. We affirm.

      We review district court decisions upholding the denial of benefits de novo.

Flaten v. Sec’y of Health and Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)

(citing Matthews v. Shalala, 10 F.3d 678, 679 (9th Cir. 1993)). However, we may

overturn an Administrative Law Judge’s (“ALJ”) denial of benefits “‘only if it is

not supported by substantial evidence or is based on legal error.’” Morgan v.

Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999) (quoting

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

means “such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Id. It is “more than a mere scintilla but less than a

preponderance.” Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005)

(quotations omitted). Thus, we must uphold the ALJ even when “evidence exists

to support more than one rational interpretation,” as long as the ALJ’s

interpretation is “supported by inferences reasonably drawn from the record.”

Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).

      The ALJ did not err at step three in the disability analysis when he

determined that Ms. Brown does not have a presumptively disabling impairment

under Listing 12.04 of 20 C.F.R. Pt. 404, Subpt. P, App. 1. In order to be


                                          2
presumptively disabled under the Listings, a claimant “must present medical

findings equal in severity to all the criteria for the one most similar listed

impairment.” Sullivan v. Zebley, 493 U.S. 521, 531 (1990) (emphasis in original)

(citing 20 C.F.R. § 416.926(a) (1989)). Listing 12.04, which pertains to affective

disorders, provides that “[t]he required level of severity . . . is met when the

requirements in both [subsections] A and B are satisfied, or when the requirements

in [subsection] C are satisfied.”1 20 C.F.R. Pt. 404, Subpt. P, App. 1. Here, the

ALJ properly examined the requirements of subsections B and C, and concluded

that Ms. Brown did not meet their criteria. ER 97a-104a. The ALJ considered Ms.

Brown’s subjective claims regarding her condition, medical evidence submitted by

numerous examining and treating physicians, and a third party report filed by Ms.

Brown’s sister. While Ms. Brown points to evidence in her favor on this issue, we

conclude that there was sufficient contrary evidence in the record for the ALJ to

reach the opposite conclusion. See ER 05a-06a.

      The ALJ did not err in his determination that Ms. Brown’s testimony was



      1
          Section A describes relevant symptoms (e.g., appetite disturbance, sleep
disturbance, decreased energy, etc.); Section B describes the required effects of
those symptoms (e.g., “[m]arked restriction of activities of daily living,” “[m]arked
difficulties in maintaining social functioning,” etc.); and Section C describes the
criteria for determining whether the claimant has a qualifying “chronic affective
disorder.” 20 C.F.R. Pt. 404, Subpt. P, App. 1.

                                            3
not wholly credible. An ALJ is permitted to reject a claimant’s testimony based on

credibility, but must do so with specific findings supporting the conclusion.

Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991) (en banc). Where, as

here, there is “affirmative evidence suggesting . . . malingering” in the record,

Smolen v. Chater, 80 F.3d 1273, 1283-84 (9th Cir. 1996), the ALJ’s reasons for

rejecting the claimant’s testimony need not reach the clear and convincing

standard. Id.; Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th

Cir. 2008); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995) (citations omitted).

In this case, we agree with the district court that the ALJ provided specific reasons

for his credibility determination, including Ms. Brown’s vague, unresponsive

testimony and inconsistencies in her statements to treating and examining doctors.

See ER 09a, 104a; see also Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir.

2008) (an ALJ may base an adverse credibility determination on “ordinary

techniques of credibility evaluation,” “unexplained or inadequately explained

failure to seek treatment or to follow a prescribed course of treatment,” and “the

claimant’s daily activities”) (quoting Smolen, 80 F.3d at 1284). We conclude that

the ALJ’s credibility determination was supported by substantial evidence. See

Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (upholding an adverse

credibility finding in part due to a claimant’s inconsistent statements to her


                                           4
doctors).

      The ALJ did not err in his consideration of the third party report filed by Ms.

Brown’s sister, Cornelia Williams. “While an ALJ must take into account lay

witness testimony about a claimant’s symptoms, the ALJ may discount that

testimony by providing ‘reasons that are germane to each witness.’” Greger v.

Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (quoting Dodrill v. Shalala, 12 F.3d

915, 919 (9th Cir. 1993)). Here, the ALJ stated specifically that he considered Ms.

Williams’s report, but that he did not accept her contentions to the extent that they

contradicted objective evidence in the record. ER 104a. The ALJ noted further

that her statements did not establish a complete inability to work. We conclude

that the ALJ properly weighed Ms. Williams’s report in light of the evidence in the

record. See Bayliss, 427 F.3d at 1218 (noting that “[i]nconsistency with medical

evidence” is one “germane” reason for rejecting lay witness testimony).

      Finally, the ALJ did not err in concluding that Ms. Brown has the residual

functional capacity to work. A determination of residual functional capacity “is an

assessment of an individual’s ability to do sustained work-related physical and

mental activities in a work setting on a regular and continuing basis.” Soc. Sec.

Ruling 96-8p, available at http://www.ssa.gov/OP_Home/rulings/di/01/SSR96-08-

di-01.html; see 20 C.F.R. § 416.945 (defining residual functional capacity as “the


                                          5
most you can still do despite your limitations”); see also Reddick v. Chater, 157

F.3d 715, 724 (9th Cir. 1998).

      In making his determination, the ALJ properly weighed the medical

evidence available to him. The ALJ was required to weigh and evaluate the

medical evidence in the record, but not to accept all or none of an expert witness’s

opinion. See Magallanes, 881 F.2d at 753. While the treating physician’s opinion

is typically accorded controlling weight if it is uncontradicted, see Holohan v.

Massanari, 246 F.3d 1195, 1202-03 (9th Cir. 2001), in this case, there was

substantial conflicting evidence in the record supplied by other medical opinions.

ER 99a-103a. Moreover, the ALJ can reject a treating physician’s opinion if it is

“brief, conclusory, and inadequately supported by clinical findings.” Thomas v.

Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (citations omitted). Here, we agree

with the district court and the ALJ that the treating physician’s opinion failed to

“identify objective medical evidence on which it is based.” ER 07a. Therefore, the

ALJ did not err in relying on the opinions of other physicians and objective

medical evidence in concluding that Ms. Brown could perform certain kinds of

work and might have been malingering with respect to at least some of her

symptoms. See Thomas, 278 F.3d at 957 (“The opinions of non-treating or

non-examining physicians may [] serve as substantial evidence when the opinions


                                           6
are consistent with independent clinical findings or other evidence in the record.”).

      In light of the evidence in the record, the ALJ’s findings were supported by

substantial evidence. Reasonable people could disagree about Ms. Brown’s

disability status based on this record. However, “[w]hen evidence reasonably

supports either confirming or reversing the ALJ’s decision, we may not substitute

our judgment for that of the ALJ.” Batson v. Comm’r of Soc. Sec. Admin., 359

F.3d 1190, 1196 (9th Cir. 2004) (citations omitted). Therefore, we are obliged to

follow the ALJ’s determination.




AFFIRMED.




                                          7
