FILED

NOT FOR PUBLICATION

FEB 14 2025

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

NORMAN STENBERG, No. 23-35617

Plaintiff-Appellant, D.C. No. 2:22-cv-00239-SAB

v.

MEMORANDUM*

MICHELLE KING, Acting Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of Washington Stanley A. Bastian, Chief District Judge, Presiding

Submitted February 10, 2025** Seattle, Washington

Before: W. FLETCHER and NGUYEN, Circuit Judges, and BENNETT,*** 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 Richard D. Bennett, United States District Judge for the District of Maryland, sitting by designation. Norman Stenberg appeals from the district court’s decision affirming the

Acting Commissioner of Social Security’s denial of his application for disability

benefits and supplemental income. The Administrative Law Judge (“ALJ”) found

Stenberg not disabled because he was capable of performing past relevant work.

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

We review the district court’s decision de novo and will “set aside a denial

of benefits only if it is not supported by substantial evidence or is based on legal

error.” Smartt v. Kijakazi, 53 F.4th 489, 494 (9th Cir. 2022) (quoting Bray v.

Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009)). Substantial

evidence is “more than a mere scintilla,” and it means “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Biestek v.

Berryhill, 587 U.S. 97, 103 (2019) (quoting Consol. Edison Co. v. NLRB, 305 U.S.

197, 229 (1938)).

Substantial evidence supports the ALJ’s conclusion at step two that Stenberg

did not have severe mental impairments. “An impairment . . . is not severe if it

does not significantly limit [the claimant’s] . . . mental ability to do basic work

activities.” 20 C.F.R. § 404.1522(a). Despite Stenberg’s mental impairments and

related symptoms, he continued to work part time without pay at his tow truck

business throughout the alleged disability period. See Ford v. Saul, 950 F.3d 1141, 2 1156 (9th Cir. 2020) (“An ALJ may consider any work activity, including part-

time work, in determining whether a claimant is disabled . . . .”). There is even

evidence in the record to suggest his work as a tow truck driver sometimes helped

alleviate his mental impairments.

The ALJ did not err in rejecting Stenberg’s testimony about his symptoms.

An ALJ’s adverse credibility finding must be based on “specific, clear and

convincing reasons.” Ferguson v. O’Malley, 95 F.4th 1194, 1199 (9th Cir. 2024).

The ALJ satisfied this requirement. First, the ALJ pointed out that Stenberg

continued to engage in physically rigorous activities such as part-time tow truck

driving despite his described pain, limited motion, and numbness. See Smartt, 53

F.4th at 499 (“An ALJ may also consider ‘whether the claimant engages in daily

activities inconsistent with the alleged symptoms.’” (quoting Lingenfelter v.

Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007))). Second, the ALJ concluded that

Stenberg was able to manage his symptoms with mostly conservative treatment.

See Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (“[E]vidence of

‘conservative treatment’ is sufficient to discount a claimant’s testimony regarding

the severity of an impairment.” (quoting Johnson v. Shalala, 60 F.3d 1428, 1434

(9th Cir. 1995))). Third, the ALJ concluded that Stenberg’s treatment records

reflected less severe limitations than claimed by Stenberg. “Although lack of

3 medical evidence cannot form the sole basis for discounting pain testimony, it is a

factor that the ALJ can consider in [the] credibility analysis.” Burch v. Barnhart,

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

The ALJ also did not err in rejecting Dr. J.D. Fitterer’s medical opinion.

“[A]n ALJ cannot reject an examining or treating doctor’s opinion as unsupported

or inconsistent without providing an explanation supported by substantial

evidence.” Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). As explained by

the ALJ, substantial evidence supports the conclusion that Dr. Howard Platter’s

opinion was more persuasive because his medium residual functional capacity

(“RFC”) finding was more “support[ed]” by the record. For example, Stenberg

continued to work at his tow truck business, service cars, and exercise at the gym

despite his physical impairments.

Although the ALJ did not address Marie Stenberg’s third-party function

report, her lay witness testimony was duplicative of Norman Stenberg’s testimony.

Thus, the ALJ’s “well-supported reasons for rejecting [his] testimony apply

equally well to the lay witness testimony,” rendering harmless the ALJ’s failure to

specifically address her testimony. See Molina v. Astrue, 674 F.3d 1104, 1117–22

(9th Cir. 2012).

4 Substantial evidence also supports the ALJ’s ultimate determination that

Stenberg had the necessary medium RFC to perform past relevant work as a tow

truck driver, automobile mechanic, and general office clerk. “At step four, a

claimant has the burden to prove that he cannot perform his past relevant work

‘either as actually performed or as generally performed in the national economy.’”

Stacy v. Colvin, 825 F.3d 563, 569 (9th Cir. 2016) (quoting Lewis v. Barnhart, 281

F.3d 1081, 1083 (9th Cir. 2002)). The composite job is made up of jobs with no

more than a medium physical demand, and Stenberg’s work history report does not

suggest more than a medium physical exertional level. See 20 C.F.R.

§ 404.1567(c). Further, Stenberg continued to perform this composite job part-

time, albeit without pay. Although the ALJ extrapolated from vocational expert

testimony based on an incomplete hypothetical limited to light work, the inquiry as

to whether a claimant may perform their past relevant work does not require the

use of vocational testimony. See Crane v. Shalala, 76 F.3d 251, 255 (9th Cir.

1996).

AFFIRMED.

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