FILED

NOT FOR PUBLICATION

FEB 13 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHELLE DELAPLAIN, No. 17-35271

Plaintiff-Appellant, D.C. No. 2:15-cv-02439-HZ

v.

MEMORANDUM*

ANDREW M. SAUL, Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the District of Oregon Marco A. Hernandez, District Judge, Presiding

Submitted February 11, 2020 **

Before: LEAVY, TROTT, and SILVERMAN, Circuit Judges.

Michelle Delaplain appeals the district court’s order affirming the Social

Security Administration’s denial of disability benefits. We have jurisdiction

pursuant to 28 U.S.C. § 1291. We review the district court order de novo and the

* 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). agency decision for substantial evidence and legal error. Garrison v. Colvin, 759

F.3d 995, 1009-10 (9th Cir. 2014). We affirm.

The ALJ gave clear and convincing reasons supported by substantial

evidence for finding that Delaplain was not entirely credible. Molina v. Astrue,

674 F.3d 1104, 1112 (9th Cir. 2012) (setting forth the standard). The ALJ

reasonably found that Delaplain’s testimony that she became disabled in 2008 was

inconsistent with the medical records and her ability to mount and ride a horse. An

ALJ may consider whether the alleged symptoms are inconsistent with medical

records and daily living activities. Id. at 1112-13. Furthermore, it was reasonable

for the ALJ to accept Dr. Henderson’s opinion that Delaplain did not exert full

effort during testing. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). The

record also supported an inference that Delaplain engaged in substantial gainful

activity in the past, while complaining of the same unchanged symptoms. Gregory

v. Bowen, 844 F.2d 664, 666-67 (9th Cir. 1988). Finally, the ALJ did not rely on a

lack of objective evidence or misunderstand fibromyalgia. He accepted the

diagnosis and assessed limitations in light of the fibromyalgia.

The ALJ provided specific and legitimate reasons supported by substantial

evidence for giving little weight to the opinions of Dr. Tyne. Garrison, 759 F.3d at

1012 (setting forth the standard). The opinions were brief, conclusory,

2 inadequately supported by medical rationale or findings, and inconsistent with

medical records and Delaplain’s ability to work with horses and to engage in other

daily living activities. The ALJ could give less weight to the opinions for these

reasons. Ghanim v. Colvin, 763 F.3d 1154, 1161-62 (9th Cir. 2014); Bayless v.

Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); Rollins v. Massanari, 261 F.3d

853, 856 (9th Cir. 2001). In addition, the ALJ reasonably gave less weight to the

first opinion in light of the short treatment time. Orn v. Astrue, 495 F.3d 625, 631

(9th Cir. 2007).

The ALJ gave a germane reason for giving only partial weight to the lay

statement. Bayliss, 427 F.3d at 1218 (holding that inconsistency with the medical

evidence is a germane reason for giving less weight to lay testimony).

Finally, the ALJ made the relevant, required step three findings in this case.

The ALJ considered the anxiety listing, made specific findings, and cited to the

record. In light of Delaplain’s failure to present medical evidence and raise a

plausible theory of equivalence, the ALJ was not required to make findings about

whether Delaplain’s condition equaled the listing for inflammatory arthritis. Burch

v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005). Nor has she met her burden of

establishing that her condition is equivalent to a listing.

AFFIRMED.

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