FILED

NOT FOR PUBLICATION

JAN 02 2019

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERICA L. SMITH, No. 16-17077

Plaintiff-Appellant, D.C. No. 2:14-cv-00520-JAT

v.

MEMORANDUM*

NANCY A. BERRYHILL, Acting Commissioner Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona James A. Teilborg, Senior District Judge, Presiding

Submitted December 28, 2018**

Before: CLIFTON, N.R. SMITH, and CHRISTEN, Circuit Judges.

Erica Smith appeals the district court’s order affirming the Commissioner of

Social Security’s denial of her application for disability insurance benefits and

supplemental security income under Titles II and XVI of the Social Security Act.

* 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). We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We review

de novo, Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 2016), and we affirm the

district court.

Smith argues that the ALJ erred by: (1) failing to give controlling weight to

the opinions of her treating physicians; (2) rejecting Smith’s symptom testimony

without providing clear and convincing reasons for doing so; and (3) rejecting

Smith’s husband’s testimony.

We address the second issue first because Smith’s symptom testimony was

central to determining the extent to which her diagnosed impairments affected her

functional capacity. The ALJ did not commit harmful error in discounting Smith’s

testimony. The ALJ applied the requisite two-step framework and cited specific,

clear, and convincing reasons for discounting Smith’s statements. See Trevizo v.

Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). The ALJ cited conflicting statements

in Smith’s testimony, evidence that Smith’s reported daily activities contradicted

her claims of debilitating impairment, and contradictory medical evidence. See

Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); Bray v. Comm’r Soc. Sec.

Admin., 554 F.3d 1219, 1227 (9th Cir. 2009).

Regarding the weight given to Smith’s treating physicians, an ALJ may

usually reject a physician’s opinion when it lacks support from objective medical

2 findings or relies upon the properly discounted subjective reports of a claimant.

Bayliss v. Barnhart, 427 F.3d 1211, 1216–17 (9th Cir. 2005). The nature of

fibromyalgia complicates the analysis because “[f]ibromyalgia is diagnosed

‘entirely on the basis of the patients’ reports of pain and other symptoms,’ and

‘there are no laboratory tests to confirm the diagnosis.’” Revels v. Berryhill, 874

F.3d 648, 663 (9th Cir. 2017) (citation omitted). “[A] person with fibromyalgia

may have ‘muscle strength, sensory functions, and reflexes [that] are normal.’” Id.

(citations omitted). The usual rules for assessing claimants’ credibility apply to

disability claims arising from a fibromyalgia diagnosis. See id. at 655.

The ALJ recognized that Smith’s fibromyalgia diagnosis was supported by

her medical record, but he discounted Dr. Sabahi’s opinion concerning the extent

of Smith’s impairment because it relied largely on Smith’s self-reports and because

Dr. Sabahi’s opinion was not supported by Smith’s medical record. Substantial

evidence supports the ALJ’s decision. Viewed as a whole, Smith’s medical record

includes numerous instances in which she described engaging in activities, on a

regular basis, that contradict Dr. Sabahi’s opinion regarding Smith’s degree of

impairment. Smith correctly notes that fibromyalgia symptoms can wax and wane,

but the ALJ did not cherry-pick the medical record and it contradicts several of her

symptom complaints. For example, the ALJ noted that Smith complains that her

3 legs swell frequently but this symptom was not documented by her care providers.

She also complains of numbness in one foot, but she apparently had not mentioned

this symptom to her rheumatologist. Smith also reported to one care provider that

she works out several times each week, a level of activity that significantly differs

from the description she gave to Dr. Sabahi.

Smith argues that the ALJ erred by rejecting treating neurologist Dr. Aryal’s

opinion. But because Dr. Aryal’s check box form shows that objective evidence

did not support her opinion, the ALJ correctly concluded that Dr. Aryal relied, at

least in part, on Smith’s subjective reports. As explained, the contradictions

between Smith’s subjective reports and her medical records provide clear and

convincing reasons for discounting Dr. Aryal’s opinion.

The ALJ did not commit harmful error by discounting the lay testimony of

Smith’s husband. The ALJ found Mr. Smith’s statements unpersuasive for the

same reasons as Smith’s testimony. Where, as here, the lay witness and claimant

testimony is substantively similar, and the ALJ has properly discounted the

claimant’s testimony, the ALJ may rely upon the same reasons to reject lay

testimony. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir.

2009).

AFFIRMED.

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