                                                                            FILED
                            NOT FOR PUBLICATION                              JAN 08 2010

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




                            FOR THE NINTH CIRCUIT



DEBRA A. LEITNER,                                 No. 08-36030

             Plaintiff - Appellant,               D.C. No. 1:07-cv-01500-CL

  v.
                                                  MEMORANDUM *
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,

             Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Oregon
                    Mark D. Clarke, Magistrate Judge, Presiding

                          Submitted December 11, 2009 **
                                 Portland, Oregon

Before: FARRIS, D.W. NELSON and BERZON, Circuit Judges.

       A narrow question was presented for review. It is not disputed that Ms.

Leitner suffers from depression with anxiety. The question is the severity and

functional limitations attributable to her depression and neck pain. It is argued that

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
the Social Security Commissioner’s denial of Ms. Leitner’s application for

Disability Insurance Benefits is neither supported by substantial evidence nor free

of legal error.

       The pivotal issue is whether the Administrative Law Judge should have

obtained a consultative examination to assess Ms. Leitner’s depression with

anxiety before concluding that her condition was not severe. Although the record

includes medical reports dating back to 1994, Leitner amended her alleged onset

date to July 16, 2005.

       After a review of all relevant medical information the ALJ determined that

based on Leitner’s residual functional capacity, she could perform work as a

cashier, driver, or flagger. He concluded that Leitner was not disabled.

       There was no error. Nothing indicates that the ALJ should have ordered a

consultative exam to assess Ms. Leitner’s depression and anxiety. The claimant

bears the burden to show that her impairment or their symptoms affect her ability

to “perform basic work activities.” Edlund v. Massanari, 253 F.3d 1152, 1159-60

(9th Cir. 2001). On this record, the ALJ could properly determine that Leitner’s

depression was not severe. Her lack of counseling, the lack of a recommendation

for counseling, her lack of hospitalization, and her voluntary discontinuance of her




                                          2
medication were factors that could properly be considered. See Burch v. Barnhart,

400 F.3d 676, 681 (9th Cir. 2005).

      The ALJ’s duty to develop the record is triggered if there is ambiguous

evidence or the record is inadequate for proper evaluation of evidence. Neither is

true here.

      Leitner also argues that the ALJ erred in rejecting her complaints fo neck

pain on the basis of her activities before her onset date. Her 2003 and 2004

activities were not, however, pivotal in the determination of lack of credibility. See

Carmickle v. Comm’r, 533 F.3d 155, 1165 (9th Cir. 2008). Moreover, they are

relevant unless Leitner proves her condition has worsened. See Fair v. Bowen, 885

F.2d 597, 600 (9th Cir. 1989). In reaching a conclusion, the ALJ pointed out that

there was no evidence of any worsening of her pain and determined that her

assertion of worsening is unsubstantiated.

      We do not ignore Ms. Leitner’s reliance on several MRI results showing disc

bulges and herniations from October 2006. As the ALJ noted, Leitner has no

demonstrable neural impingement or central canal stenosis in the alleged

worsening of her condition. Normal wear and tear mild degenerative changes are

to be expected. The ALJ justifiably relied on evidence of her condition prior to the

alleged onset date. He cited specific reasons for not giving Leitner’s testimony full


                                          3
credibility. The ALJ’s hypotheticals were supported by substantial evidence. He

considered all medical opinions and impairments. An ALJ is “not required to

discuss every piece of evidence.” Howard v. Barnhart, 341 F.3d 1006, 1012 (9th

Cir. 2003). A medical opinion that is inconsistent with a claimant’s activities of

daily living need not be considered controlling.

      We have carefully considered Leitner’s allegations. The record reflects that

the ALJ properly compared her residual functioning capacity to her prior work.

The vocational expert recognized her limitations when he indicated jobs that were

appropriate for her. Substantial evidence supports the ALJ’s finding that Leitner is

not disabled.

      AFFIRMED.




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