NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 26 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RHONDA JEAN ZUNIGA, No. 18-15784

Plaintiff-Appellant, D.C. No. 4:13-cv-01678-YGR

v.

MEMORANDUM*

ANDREW M. SAUL, Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Yvonne Gonzalez Rogers, District Judge, Presiding

Submitted December 2, 2019** San Francisco, California

Before: SILER,*** BYBEE, and R. NELSON, Circuit Judges.

Rhonda Zuniga appeals the district court’s decision affirming the

Commissioner of Social Security’s denial of Zuniga’s application for disability

* 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 Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. insurance and supplemental security income under Titles II and XVI of the Social

Security Act. We review de novo a district court’s order affirming the

Commissioner’s denial of Social Security benefits and set it aside only if the denial

of benefits is based on legal error or not supported by substantial evidence in the

record. Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017). We have jurisdiction

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

As a threshold matter, we must decide which issues are properly before us.

This inquiry requires us to determine whether the first of Zuniga’s two remands from

the district court was under sentence four or sentence six of 42 U.S.C. § 405(g). See

Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002) (“The fourth and sixth

sentences of Section 405(g) set forth the exclusive methods by which district courts

may remand to the Commissioner of Social Security Administration.”). This

distinction is significant because a sentence four remand is immediately appealable

at the time of remand, while a sentence six remand is not appealable until after the

conclusion of the post-remand proceedings. See Melkonyan v. Sullivan, 501 U.S.

89, 102 (1991). It is clear from the circumstances of the remand, Zuniga’s conduct

below, and her submissions to this court and the district court that the remand was

under sentence four of § 405(g). Therefore, Zuniga waived any argument not

properly before the district court in the case filed after her first remand. Accordingly,

we will analyze the three issues she properly presented to this court.

2 18-15784 First, Zuniga contends that the administrative law judge (ALJ) erroneously

discredited her subjective testimony concerning the severity of her symptoms and

limitations. When assessing the credibility of a claimant’s testimony regarding

subjective pain or the intensity of symptoms, the ALJ engages in a two-step analysis.

Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). The ALJ first “must determine

whether the claimant has presented objective medical evidence of an underlying

impairment which could reasonably be expected to produce the pain or other

symptoms alleged.” Id. (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th

Cir. 2007)) (internal quotation marks and citations omitted). If the first test is met

“and there is no evidence of malingering, the ALJ can only reject the claimant’s

testimony about the severity of the symptoms if she gives ‘specific, clear and

convincing reasons’ for the rejection.” Id. (quoting Lingenfelter, 504 F.3d at 1036).

Here, the ALJ applied the two-step process and determined that while Zuniga’s

impairments could reasonably be expected to cause the alleged symptoms, her

statements regarding the severity and limiting effects of her symptoms were not

consistent with the objective medical evidence and her daily activities. Cf. Molina

v. Astrue, 674 F.3d 1104, 1112–13 (9th Cir. 2012). Because the ALJ’s adverse-

credibility determination was supported by specific, clear, and convincing reasons,

we uphold it.

Next, Zuniga argues that the ALJ failed to give proper weight to the medical

3 18-15784 opinions of Drs. Rubin, Boorstein, and Lee. “If a treating or examining doctor’s

opinion is contradicted by another doctor’s opinion, an ALJ may only reject it by

providing specific and legitimate reasons that are supported by substantial

evidence.” Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (internal

quotation marks and citation omitted). The ALJ rejected the doctors’ opinions

because they were not supported by multiple reviewing physicians or objective

medical evidence and relied uncritically on Zuniga’s self-reporting of the severity of

her symptoms and limitations. Cf. Tonapetyan v. Halter, 242 F.3d 1144, 1148–49

(9th Cir. 2001). Zuniga’s self-reports were undermined by her daily activities and

her treating pharmacist’s notes, which explained that Zuniga was functioning at a

fair level and had cut back on her medication. See Tommasetti v. Astrue, 533 F.3d

1035, 1039 (9th Cir. 2008) (“The ALJ may consider many factors in weighing a

claimant’s credibility, including . . . unexplained or inadequately explained failure

to seek treatment or to follow a prescribed course of treatment . . . [and] the

claimant’s daily activities.” (internal quotation marks and citation omitted)).

Consequently, the ALJ provided specific and legitimate reasons, supported by

substantial evidence in the record, for rejecting the opinions of Drs. Rubin,

Boorstein, and Lee.

Finally, Zuniga claims that the ALJ failed to comply with the district court’s

mandates after the two remands in this case. More specifically, she asserts that the

4 18-15784 ALJ failed to reconcile Drs. Weems’s and Dolnak’s reports and did not address Dr.

Boorstein’s medical opinion. The rule of mandate applies to administrative social

security cases, and the lower court commits error if it fails to obey the remand order.

Stacy v. Colvin, 825 F.3d 563, 567–68 (9th Cir. 2016). However, Zuniga’s argument

is meritless. The ALJ explicitly addressed Dr. Boorstein’s medical opinion. And

the ALJ reconciled Drs. Weems’s and Dolnak’s reports by summarizing Dr.

Weems’s findings, giving her opinion “some weight” as to Zuniga’s residual

functioning capacity, and explaining that the record as a whole, including Dr.

Dolnak’s report, did not support Dr. Weems’s other findings. Accordingly, we

concur with the district court that “the ALJ properly followed [its] instructions on

remand.”

AFFIRMED.

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