NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 22 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CYNTHIA M. MCCLOUD, No. 18-35322

Plaintiff-Appellant, D.C. No. 3:17-cv-05290-MAT

v.

MEMORANDUM*

ANDREW M. SAUL, Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Mary Alice Theiler, Magistrate Judge, Presiding

Argued and Submitted July 6, 2020 Seattle, Washington

Before: NGUYEN and BUMATAY, Circuit Judges, and SIMON,** District Judge.

Cynthia M. McCloud (McCloud) appeals the district court’s judgment

affirming the decision of the Commissioner of Social Security to deny McCloud’s

application for supplemental security income and disability insurance benefits

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Michael H. Simon, United States District Judge for the District of Oregon, sitting by designation. (collectively, benefits) under the Social Security Act. We have jurisdiction under

28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We affirm.

We review de novo a district court’s order affirming the Commissioner’s

decision to deny benefits. Revels v. Berryhill, 874 F.3d 648, 653–54 (9th Cir.

2017). We set aside a denial of benefits only when the decision of the

administrative law judge (ALJ) is based on “legal error or not supported by

substantial evidence in the record.” Id. Substantial evidence means more than a

mere scintilla, but less than a preponderance. Id. It means such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion. Id. When

“evidence is susceptible to more than one rational interpretation, the ALJ’s

decision should be upheld.” Id. at 654.

1. McCloud argues that the ALJ improperly discounted her subjective

symptom testimony. When an ALJ finds a claimant’s medically determinable

impairments could reasonably be expected to cause the alleged symptoms and

there is no evidence of malingering, the ALJ must give specific, clear, and

convincing reasons to reject the claimant’s testimony. Ghanim v. Colvin, 763 F.3d

1154, 1163 (9th Cir. 2014). “General findings are insufficient; rather, the ALJ must

identify what testimony is not credible and what evidence undermines the

claimant’s complaints.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995).

Here, the ALJ provided several reasons for discounting McCloud’s

2 18-35322 testimony, including: (1) her lack of mental health treatment from 2008 to 2013;

(2) her improvement after she obtained mental health treatment; (3) several

inconsistencies between McCloud’s statements and the medical record and other

evidence; and (4) the mild objective clinical findings. These are all acceptable

reasons. See Thomas v. Barnhart, 278 F.3d 947, 958–59 (9th Cir. 2002). Further,

the ALJ’s findings are supported by substantial evidence in the record.

Regarding McCloud’s lack of mental health treatment from 2008 to 2013,

there is no evidence in the record showing that her failure to seek mental health

treatment during that period was attributable to her mental health impairments

rather than her own personal preference. See Molina v. Astrue, 674 F.3d 1104,

1114 (9th Cir. 2012). Regarding inconsistencies between McCloud’s statements

and the record evidence, the ALJ identified, among other things, inconsistencies

between, on one hand, McCloud’s statements about whether she could leave her

house alone and whether she could go out in public and, on the other hand, other

evidence in the record. These inconsistencies are appropriate for the ALJ to

consider. See Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017).

Regarding the objective medical findings, although an ALJ may not rely solely on

the fact that objective medical evidence does not substantiate a claimant’s

testimony, see Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006), it is

nevertheless an appropriate factor for an ALJ to consider. See Rollins v.

3 18-35322 Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Thus, the ALJ did not err by

considering the lack of corroborating objective medical evidence, among other

reasons given by the ALJ for discounting McCloud’s subjective symptom

testimony.

2. McCloud contends that the ALJ erred by failing to discuss the

notation made by a Social Security Administration (SSA) interviewer, commenting

that McCloud was a very poor historian regarding both her work and medical

history. An ALJ “may not reject ‘significant, probative evidence’ without

explanation.” Flores v. Shalala, 49 F.3d 562, 570–71 (9th Cir. 1995) (quoting

Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984)). The interviewer’s single

notation, however, was not significant probative evidence. Further, the ALJ

reached the same conclusion as the interviewer, finding that the inconsistencies in

McCloud’s statements undermine “the claimant’s reliability as an accurate

historian.”

3. McCloud asserts that the ALJ erred by discounting the lay opinions of

McCloud’s husband and sister. To discount lay witness testimony, an ALJ “must

give reasons that are germane to each witness.” Rounds v. Comm’r Soc. Sec.

Admin., 807 F.3d 996, 1007 (9th Cir. 2015). The ALJ gave germane reasons for

discounting the testimony of these witnesses, including that their testimony was

inconsistent with both McCloud’s activities and the medical record.

4 18-35322 4. McCloud argues that the ALJ erred in discounting the medical opinion

of the SSA’s examining specialist Kenneth A. Hapke, Ph.D. McCloud also argues

that the ALJ erred by looking only at Dr. Hapke’s Medical Source Statement and

ignoring other material in Dr. Hapke’s file, when formulating McCloud’s residual

functional capacity (RFC). Dr. Hapke found “significant impairment in memory

functioning” but also concluded that McCloud “could still adequately manage

funds.” The ALJ explained that “some weight is given to Dr. Hapke’s findings,”

but “greater weight is not given because his findings are too broad, particularly his

finding that it was unlikely that the claimant would return to substantial gainful

activity.” The ALJ also recognized that Dr. Hapke conducted a “detailed and

comprehensive psychological examination.” An ALJ may reject the testimony of

an examining, but non-treating physician, in favor of a non-examining, non-

treating physician when the ALJ gives “specific, legitimate reasons for doing so,

and those reasons are supported by substantial record evidence.” Roberts v.

Shalala, 66 F.3d 179, 184 (9th Cir. 1995), as amended (Oct. 23, 1995).

In disability benefits cases, “physicians may render medical, clinical

opinions, or they may render opinions on the ultimate issue of disability—the

claimant’s ability to perform work.” Garrison v. Colvin, 759 F.3d 995, 1012 (9th

Cir. 2014). Contrary to McCloud’s argument, the ALJ did not afford Dr. Hapke’s

opinion lesser weight solely because he opined about the ultimate issue of

5 18-35322 employability. That would have been inappropriate. Instead, the ALJ gave

diminished weight to Dr. Hapke’s findings based in part on the opinions of the

non-examining doctors. That is appropriate. Tonapetyan v. Halter, 242 F.3d 1144,

1149 (9th Cir. 2001) (stating that the contrary opinion of a non-examining

physician may constitute substantial evidence when it is consistent with other

independent evidence in the record).

In addition, contrary to McCloud’s argument, the ALJ considered

Dr. Hapke’s entire opinion and not merely his Medical Source Statement. The ALJ

noted that “Dr. Hapke performed the most detailed mental testing in the record,

which indicated that the claimant has a neuropsychological impairment, but that it

was minimal or mild.” The ALJ also noted other testing conducted by Dr. Hapke.

The ALJ acknowledged Dr. Hapke’s “testing” regarding memory impairment,

which “indicated a significant memory impairment.” As the ALJ explained,

Dr. Hapke’s “detailed mental testing,” as well as “observations and testing,”

showed that McCloud had a “minimal or mild” neuropsychological impairment

and a “significant memory impairment.” Thus, the ALJ considered more than just

Dr. Hapke’s Medical Source Statement conclusions.

5. McCloud also contends that the ALJ erred in discounting the medical

opinion of the other SSA examining specialist, Tasmyn Bowes, Psy.D. The ALJ

discounted Dr. Bowes’s opinion because she “relied too much on the claimant’s

6 18-35322 less than credible complaints and was unaware of [McCloud’s] regular marijuana

use.” The Commissioner concedes that the latter reason was error. Dr. Bowes

acknowledged McCloud’s marijuana use. The Commissioner, however, argues that

the former reason was specific and legitimate under Tommasetti v. Astrue, 533

F.3d 1035, 1041 (9th Cir. 2008) (noting that an ALJ may discount a doctor’s

opinion if it is based to a large extent on a claimant’s self-reports that have been

properly discounted as incredible).

Under Buck v. Berryhill, “the rule allowing an ALJ to reject opinions based

on self-reports does not apply in the same manner to opinions regarding mental

illness.” 869 F.3d 1040, 1049 (9th Cir. 2017) (emphasis added). This is because

“[p]sychiatric evaluations may appear subjective, especially compared to

evaluation in other medical fields. Diagnoses will always depend in part on the

patient’s self-report, as well as on the clinician’s observations of the patient. But

such is the nature of psychiatry.” Id.

The ALJ, however, also explained that greater weight was not given to

Dr. Bowes’s opinion because Dr. Bowes did not recognize certain inconsistencies

in McCloud’s testimony that were recognized by other doctors, whose opinions

were given greater weight by the ALJ. Further, Dr. Bowes’s mental status

examinations did not align with the severity of her conclusions, nor did they align

with the prior mental status examinations of other doctors. These are acceptable

7 18-35322 reasons to discount Dr. Bowes’s opinions.

6. Because substantial evidence supports the ALJ’s conclusions

regarding the medical and lay evidence, we find no error in the RFC determination.

See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175–76 (9th Cir. 2008).

AFFIRMED.

8 18-35322