FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 17 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MISTY DAWN SMARTT, No. 21-16009

Plaintiff-Appellant, D.C. No. 3:20-cv-08143-JAT

v.

OPINION

KILOLO KIJAKAZI, Acting Commissioner of Social Security,

Defendant-Appellee.

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

Argued and Submitted October 20, 2022 San Francisco, California

Before: Ronald Lee Gilman,* Consuelo M. Callahan, and Lawrence VanDyke, Circuit Judges.

Opinion by Judge VanDyke

* The Honorable Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

SUMMARY **

Social Security The panel affirmed the district court’s judgment affirming the administrative law judge’s (“ALJ”) denial of claimant’s application for Social Security disability insurance benefits and supplemental security income; and concluded that the ALJ’s decision was supported by substantial evidence.

The panel held that the ALJ did not err in discounting the opinion of claimant’s treating physician, Dr. Karandish, because the “extreme limitations” described by the physician were incompatible with the rest of the objective medical evidence. First, claimant’s treating physician was not really her treating physician as that title would normally be understood. Dr. Karandish functioned like a consultative examiner, not a treating physician. Second, the ALJ identified specific conflicts between Dr. Karandish’s opinion and the clinical evidence. The ALJ permissibly concluded that Dr. Karandish’s assessments were “overly restrictive.”

In addition, the ALJ did not err in giving significant weight to the opinion of the consultative examiner, Dr. Gordon, because the examiner’s determination that claimant could perform light-exertion work was consistent with the objective medical evidence.

Finally, the panel held that the ALJ provided “clear and convincing” reasons for discounting claimant’s subjective pain testimony. Claimant’s self-reported limitations were inconsistent with the objective medical evidence, claimant’s self- reported daily activities, and claimant’s generally conservative treatment plan.

COUNSEL

Brian Ellexson (argued) and Eric G. Slepian, Slepian Ellexson PLLC, Phoenix, Arizona, for Plaintiff-Appellant.

Asim H. Modi (argued) and Sathya Oum, Special Assistant United States Attorneys; Shea Lita Bond; Peter K. Thompson, Acting Chief Counsel, Region IX, Social Security Administration; Gary M. Restaino, United States Attorney; Office of the United States Attorney, San Francisco, California; for Defendant-Appellee.

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. VANDYKE, Circuit Judge:

Claimant Misty Dawn Smartt, an Arizona woman in her forties, filed an

application for Social Security disability insurance benefits and supplemental

security income. The agency repeatedly denied Smartt’s claims. The district court

affirmed the ALJ’s decision, concluding that the ALJ reached a reasonable

determination based on substantial evidence in the record. On appeal, Smartt argues

that the ALJ erred by insufficiently supporting his analysis, failing to account for

Smartt’s symptoms and limitations in the residual functional capacity (RFC)

assessment, improperly discounting the opinion of one medical provider while

giving undue weight to the opinion of another, and failing to satisfy the “clear and

convincing” standard for rejecting subjective symptom testimony.

We hold that the ALJ did not err in discounting the opinion of Smartt’s

treating physician because the “extreme limitations” described by the physician were

incompatible with the rest of the objective medical evidence. Likewise, the ALJ did

not err in giving significant weight to the opinion of the consultative examiner

because the examiner’s determination that Smartt could perform light-exertion work

was consistent with the objective medical evidence. Finally, the ALJ provided “clear

and convincing” reasons for discounting Smartt’s subjective pain testimony.

Smartt’s self-reported limitations were inconsistent with (1) the objective medical

evidence, (2) her self-reported daily activities, and (3) her generally conservative

2 treatment plan. Accordingly, we affirm the district court’s decision.

I.

In June 2015, Smartt slipped on her patio and suffered a head injury. Weeks

later, she began to experience pain and weakness in her right arm. She reportedly

“tried [V]icodin and tramadol for pain with no relief,” then took ibuprofen which

“was minimally helping the pain.” When she eventually sought medical attention at

an emergency room, CT and MRI imaging revealed fractured vertebrae in her neck.

She underwent surgery to stabilize her cervical spine and decompress her spinal

cord. By all accounts, the surgery was successful. Smartt was discharged from the

hospital on August 3, 2015, with instructions to complete eight weeks of antibiotics

and to continue wearing a neck brace.

At her follow-up appointment a month later, Smartt’s surgeon noted that she

“appear[ed] healthy, alert, and in no acute distress.” She “continued to recover well

following surgery,” and her arm strength had largely returned, measuring four on a

scale of five. Though she described feeling “wobbly at times,” she denied any focal

leg weakness and continued to walk without assistance.

About two months post-surgery, Smartt sought care at the Pain Center of

Arizona. A pain specialist evaluated Smartt, who complained generally of pain in

her head, neck, and back. Although Smartt reported weakness and difficulty

reaching and lifting, the specialist found no abnormalities. She experienced some

3 spinal tenderness but maintained normal gait, coordination, sensation, muscle

strength, and tone. At follow-up visits, the pain specialist noted Smartt “is benefiting

from opioid therapy.” Despite normal physical exams, Smartt rated her pain as eight

to ten out of ten, and alleged that her pain was aggravated by “everything.” An

inpatient provider observed “opioid dependency.”

Smartt regularly saw a team of nurse practitioners at the Pain Center who

monitored her chronic opioid use. When she decided to pursue her Social Security

disability claim, Smartt asked one of her nurse practitioners to complete her

paperwork. He explained he could not do so, and she would need a physician’s

signature instead. So Smartt saw a Pain Center physician, Dr. Karandish, who

became her “treating” physician for the purpose of completing her disability claim

paperwork. At her first appointment with Dr. Karandish, Smartt refused to have her

vitals checked “because she [wa]s only [t]here to have [the doctor] sign papers.”

After an “unremarkable” and “normal” physical examination, Dr. Karandish

completed Smartt’s assessment, awarding the most “severe” or restrictive option in

each category and marking “yes” in response to “additional limitations” without

further explanation. Smartt returned to see Dr. Karandish twice more for nearly

identical work assessments in 2018 and 2019. Smartt saw Dr. Karandish just three

times over the course of three years, each time to do an evaluation and complete

paperwork related to her disability claims.

4 Smartt applied for Social Security disability insurance benefits and

supplemental security income in August and September of 2015, claiming that she

became disabled on July 22, 2015, as a result of her “broken neck, crushed vertebrae,

and osteomyelitis.” At the first administrative hearing, the ALJ ordered Smartt to

obtain an assessment from a consultative examiner, so she saw Dr. Gordon. Dr.

Gordon concluded Smartt was capable of more than Dr. Karandish’s “severe” report

indicated. In Dr. Gordon’s opinion, Smartt was capable of light-exertion work

involving sitting, standing, and walking for limited periods, as well as carrying up

to twenty pounds.

Ultimately, the agency denied Smartt’s claims three times: after initial review,

again upon reconsideration, and finally in an ALJ decision following a hearing. The

agency’s Appeals Council subsequently denied review. On appeal, the district court

affirmed the ALJ’s denial of benefits, concluding that substantial evidence supported

a finding that Smartt lacked a disability under the statute. Smartt now appeals the

district court’s order.

II.

We have jurisdiction under 28 U.S.C. § 1291. “We review a district court’s

judgment de novo” and “set aside a denial of benefits only if it is not supported by

substantial evidence or is based on legal error.” Bray v. Comm’r of Soc. Sec. Admin.,

554 F.3d 1219, 1222 (9th Cir. 2009) (citation omitted). “Substantial evidence … is

5 such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (citation omitted).

“Where the evidence is susceptible to more than one rational interpretation, the

ALJ’s decision must be affirmed.” Id. (cleaned up).

Against that backdrop, when faced with contradicted medical testimony, an

ALJ must provide “specific and legitimate reasons supported by substantial evidence

in the record” for rejecting a treating physician’s opinion. Lester v. Chater, 81 F.3d

821, 830 (9th Cir. 1995). Ultimately, the “ALJ is the final arbiter with respect to

resolving ambiguities in the medical evidence.” Tommasetti v. Astrue, 533 F.3d

1035, 1041–42 (9th Cir. 2008); see also Magallanes v. Bowen, 881 F.2d 747, 751

(9th Cir. 1989).

When objective medical evidence is inconsistent with a claimant’s subjective

testimony, an ALJ can “reject the claimant’s testimony about the severity of her

symptoms only by offering specific, clear, and convincing reasons for doing so.”

Garrison v. Colvin, 759 F.3d 995, 1014–15 (9th Cir. 2014). And an ALJ may not

“reject a claimant’s subjective complaints based solely on a lack of medical evidence

to fully corroborate the alleged severity of pain.” Burch v. Barnhart, 400 F.3d 676,

681 (9th Cir. 2005). This means that an ALJ cannot effectively render a claimant’s

subjective symptom testimony superfluous by demanding positive objective medical

evidence “fully corroborat[ing]” every allegation within the subjective testimony.

6

III.

We affirm the district court because (1) the ALJ did not err in weighing the

opinions of the treating physician, Dr. Karandish, and the consultative examiner, Dr.

Gordon, offering specific and legitimate reasons supported by substantial evidence,

and (2) the ALJ properly discounted Smartt’s subjective pain testimony by providing

a specific, clear, and convincing rationale based on inconsistencies with the record,

Smartt’s self-reported daily activities, and her generally conservative treatment plan.

We need not consider Smartt’s remaining arguments, which are waived because she

raises them for the first time on appeal.

A.

The ALJ found that the “extreme limitations” described in Dr. Karandish’s

assessments were not supported by the objective medical record. As long as a

treating physician’s opinion “is well-supported … and is not inconsistent with the

other substantial evidence in [the] case record, we will give it controlling weight.”

20 C.F.R. § 404.1527(c)(2). A treating physician’s opinion is generally “entitled to

greater deference than [opinions] of examining physicians.” Lester, 81 F.3d at 831

n.8. This principle assumes that a treating physician has an established, long-term

relationship with the claimant and can offer “a detailed, longitudinal picture of [a

claimant’s] medical impairments,” 20 C.F.R. § 404.1527(c)(2), because the treating

physician has been able “to observe and know the patient as an individual.” Woods

7 v. Kijakazi, 32 F.4th 785, 789 (9th Cir. 2022) (citation omitted). By extension, the

opinion of a consultative examining physician is entitled to greater weight than the

opinion of a nonexamining physician. Id. To reject the opinion of a treating or

examining physician where the opinion is incompatible with other evidence, the ALJ

must provide “specific and legitimate reasons that are supported by substantial

evidence.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (citation omitted).

Here, the ALJ properly discounted the treating physician’s opinion by

identifying specific reasons supported by substantial evidence. First, it bears noting

that Smartt’s “treating” physician, Dr. Karandish, was not really her treating

physician as that title would normally be understood. The ALJ observed that their

relationship was limited to three visits over three years for the purpose of preparing

three corresponding Social Security assessments or questionnaires. Dr. Karandish’s

relationship with Smartt began only because her primary provider, a nurse

practitioner, told her he was not qualified to sign her disability paperwork. The sole

purpose of her visits with Dr. Karandish was to advance her disability claim. She

was not presenting for treatment; indeed, she declined a standard vitals check

because it wasn’t relevant to her goal “to have [the doctor] sign papers.” In short,

Dr. Karandish functioned like a consultative examiner, not a treating physician. He

had no broader context or “longitudinal” perspective, because he assessed her for

the first time when she began the Social Security application process.

8 Second, the ALJ identified specific conflicts between Dr. Karandish’s opinion

and the clinical evidence. Dr. Karandish found that Smartt was unable to work

because, in an eight-hour workday, she was incapable of (1) sitting for more than

two hours, (2) standing or walking for more than two hours, and (3) lifting or

carrying more than ten pounds. He also noted that she would need to “alternate

between sitting, standing, or walking” every one to twenty minutes. In a subsequent

report, rather than completing the itemized form by assigning percentages to

Smartt’s capabilities (e.g., use of her right hand), he simply wrote “unable to work.”

By contrast, the ALJ identified contemporaneous medical records showing Smartt

maintained “normal range of motion” and use of her extremities. The ALJ cited

records indicating Smartt was “neurologically intact,” “could ambulate without an

assistive device,” and “improved in her condition after surgery.”

The ALJ permissibly concluded that Dr. Karandish’s assessments were

“overly restrictive,” given that most of the medical records described Smartt’s

documented improvement in strength, walking, and daily activities. Because the

ALJ identified specific and legitimate inconsistencies supported by substantial

evidence, there was no error in discounting Dr. Karandish’s opinion.

By contrast, the consultative examiner Dr. Gordon found Smartt capable of

performing a range of light-exertion work consistent with sitting, standing, and

walking up to four hours in an eight-hour workday. Although Smartt complained of

9 pain in her cervical spine and extremities, Dr. Gordon observed that she had normal

muscle strength and tone, suggesting that she could “frequently” or “occasionally”

carry up to twenty pounds. He also noted that she was able to sit comfortably for

the duration of the half-hour appointment, belying Dr. Karandish’s report that she

must more frequently alternate between sitting and standing.

Smartt makes much of Dr. Gordon’s statement that “[t]he claimant’s walker

is medically necessary all the time.” (emphasis added). And later in his report, Dr.

Gordon marked “yes” in response to the assessment’s boilerplate question: “Does

this individual require the use of a cane to ambulate?” But these statements are not

necessarily inconsistent with other parts of his report. Dr. Gordon’s statement in one

part of his report that a “walker is medically necessary all the time” can plausibly be

explained as Smartt’s own subjective assessment. This statement is listed under

“History and Physical,” among other patient-reported facts that Dr. Gordon could

not have verified, such as that (1) she is able to complete self-care activities (e.g.,

meals, hygiene, light housework); (2) she is able to drive; and (3) her narcotic pain

medication helps minimally. Distinguishing his own opinion from the claimant’s,

Dr. Gordon subsequently indicated in his “Medical Source Statement” that Smartt

can, for up to fifty feet, ambulate independently “without using a wheelchair, walker,

or [two] canes or [two] crutches.”

Taken together, Dr. Gordon’s statements are, at best, not internally

10 inconsistent and, at worst, ambiguous. But even assuming the latter, “the ALJ is the

final arbiter with respect to resolving ambiguities in the medical evidence.”

Tommasetti, 533 F.3d at 1041. The ALJ resolved any discrepancies in Dr. Gordon’s

report to mean that Smartt needs assistance when ambulating any distance over fifty

feet. Thus, the ALJ did not err in giving more weight to Dr. Gordon’s opinion, and

reasonably determined it was consistent with the rest of the objective medical record.

See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).

B.

The ALJ properly discounted Smartt’s subjective pain testimony and self-

reported limitations because (1) the objective medical evidence was inconsistent

with those limitations, (2) Smartt acknowledged that she routinely performed several

daily activities, notwithstanding her caveats, and (3) generally her treatment had

been conservative.

When a claimant presents objective medical evidence establishing an

impairment “that could reasonably produce the symptoms of which she complains,

an adverse credibility finding must be based on clear and convincing reasons.”

Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008)

(cleaned up). This heightened standard does not apply when there is affirmative

evidence of malingering. Id. The ALJ here stopped short of characterizing the

evidence as proof of malingering: Smartt presented medical records supporting

11 multiple diagnoses—chronic cervical spine pain, cardiovascular disorders,

respiratory issues, and recurring cellulitis—that could reasonably produce the pain

she describes. Accordingly, we must determine whether the ALJ properly

discounted Smartt’s subjective testimony under the “clear and convincing” standard.

1.

Providing clear and convincing evidence of inconsistencies, the ALJ found

that Smartt’s “allegations concerning the intensity, persistence, and limiting effects

of her symptoms are not consistent with the objective evidence of record.”

First, the ALJ identified a direct contradiction in Smartt’s testimony regarding

her ability to drive. At hearings before the ALJ in August 2018 and April 2019,

Smartt repeatedly testified that she had not driven since her neck surgery in 2015.

But in her Daily Activities Questionnaire dated April 10, 2016, Smartt reported that

she routinely drove a car, and her typical daily activities included driving her

daughter to school.

Second, Smartt’s inconsistent use of mobility aids belies her testimony about

the severity of her limitations. In her agency appeal in 2016, Smartt reported: “After

contracting cellulitis in my right leg, which was injured in 2009, I have been unable

to walk without the assistance of a walker.” Smartt also testified that she uses a

cane, crutch, and wheelchair for assistance. But the ALJ identified multiple specific

examples of Smartt’s inconsistent use of mobility aids contrary to her testimony

12 about the extent of her limitations.

Even when she visited the emergency room for pain and swelling in her right

leg on March 10, 2016, Smartt was “[a]ble to ambulate on her leg” with no mention

of a mobility aid. At multiple hospital admissions and doctor’s appointments in

2017, medical records show she was able to “ambulate without [an] assistive device”

of any sort, including a cane or walker. At another emergency room visit on

October 5, 2017, Smartt arrived with pain and redness in her right foot because she

had stepped on glass a month prior. The emergency room physician made no

mention of Smartt presenting with a mobility aid; in fact, because she arrived without

one, the physician temporarily “put [her] on crutches” when discharged. Smartt had

“[n]o difficulty with ambulation or balance” during a subsequent hospital admission

in 2018, and nothing in the record indicates she used a mobility aid on that occasion.

By contrast, Smartt typically appeared with a walker at Pain Center

appointments and visits associated with her disability application. Despite her

sporadic use of mobility aids, she told the examining physician in September 2018

that she “ha[d] been using a walker … since 2016.” Noting these inconsistencies,

the ALJ properly discounted Smartt’s subjective pain testimony by identifying

specific discrepancies between her testimony and the objective medical evidence.

In his decision, the ALJ also noted that Smartt’s symptoms are “not entirely

consistent with the medical evidence.” (emphasis added). Smartt argues that, by

13 using this phrase, the ALJ improperly penalized her for not providing objective

medical evidence fully corroborating the severity of her self-reported symptoms.

Smartt is correct that an ALJ may not “reject a claimant’s subjective complaints

based solely on a lack of medical evidence to fully corroborate the alleged severity

of pain.” Burch, 400 F.3d at 680 (emphases added). But Smartt incorrectly reads

the ALJ’s “not entirely consistent” language as committing the error identified in

Burch.

In contrast to Smartt’s interpretation, the district court interpreted the ALJ’s

“not entirely consistent” phrase to mean “the record contains conflicting evidence”

between Smartt’s subjective symptom testimony and other evidence in the record,

including the objective medical evidence. The context of the ALJ’s decision as a

whole demonstrates that this is the correct reading of the ALJ’s meaning because, as

discussed above, the ALJ highlighted several inconsistencies between Smartt’s

subjective symptom testimony and the objective medical evidence in the record,

including record evidence about Smartt’s driving and her irregular use of mobility

aids.

Claimants like Smartt sometimes mischaracterize Burch as completely

forbidding an ALJ from using inconsistent objective medical evidence in the record

to discount subjective symptom testimony. That is a misreading of Burch. When

objective medical evidence in the record is inconsistent with the claimant’s

14 subjective testimony, the ALJ may indeed weigh it as undercutting such testimony.

We have upheld ALJ decisions that do just that in many cases. See, e.g., Chaudhry

v. Astrue, 688 F.3d 661, 672–73 (9th Cir. 2012) (affirming an ALJ’s determination

that interpreted and preferred objective medical evidence to subjective testimony);

Burch, 400 F.3d at 681 (affirming an ALJ’s discounting of subjective claims of

disabling pain based on objective medical evidence and a claimant’s daily activities);

Thomas, 278 F.3d at 959 (affirming an ALJ’s decision discounting a claimant’s

testimony after “finding no objective medical evidence to support [claimant’s]

descriptions of her pain and limitations,” and “that [claimant] was able to perform

various household chores such as cooking, laundry, washing dishes, and shopping”);

Osenbrock v. Apfel, 240 F.3d 1157, 1165–66 (9th Cir. 2001) (affirming an ALJ’s

rejection of allegations of disabling pain based on normal physical examinations).

Instead, what Burch requires is that an ALJ cannot insist on clear medical

evidence to support each part of a claimant’s subjective pain testimony when there

is no objective testimony evincing otherwise. That is, an ALJ cannot effectively

render a claimant’s subjective symptom testimony superfluous by demanding

positive objective medical evidence “fully corroborat[ing]” every allegation within

the subjective testimony. Burch, 400 F.3d at 681; see also Luna v. Bowen, 834 F.2d

161, 165 (10th Cir. 1987) (“If objective medical evidence must establish that severe

pain exists, subjective testimony serves no purpose at all.”). That—and only that—

15 is what Burch forbids.1

Indeed, if Burch was applied as aggressively as Smartt insists, an ALJ would

be required in many cases to simply accept a claimant’s subjective symptom

testimony notwithstanding inconsistencies between that testimony and the other

objective medical evidence in the record, allowing a claimant’s subjective evidence

to effectively trump all other evidence in a case. This misinterpretation of Burch

conflicts with other precedents from our court, where we’ve made clear that an ALJ

is not “required to believe every allegation of disabling pain, or else disability

benefits would be available for the asking, a result plainly contrary to” the Social

Security Act. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair

v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)), superseded on other grounds by 20

C.F.R. § 404.1502(a).

Ultimately, the “clear and convincing” standard requires an ALJ to show his

1 Indeed, requiring “full corroboration” of all subjective symptom testimony would run afoul, not just of Burch, but also the Social Security Administration’s own regulations. Addressing the claimant, the relevant regulation reads in part: [W]e will not reject your statements about the intensity and persistence of your pain or other symptoms or about the effect your symptoms have on your ability to work solely because the available objective medical evidence does not substantiate your statements. 20 C.F.R. § 404.1529(c)(2). Thus, the regulations and Burch are in full accord. But neither Burch nor the regulations prohibit ALJs from doing what they do all the time: relying on any contradictions between a claimant’s subjective symptom testimony and the objective medical evidence in the record to discount the symptom testimony.

16 work, which the ALJ did here. In discounting Smartt’s testimony, the ALJ identified

“specific, clear, and convincing reasons supporting a finding that [Smartt’s]

limitations were not as severe as [she] claimed.” Ahearn v. Saul, 988 F.3d 1111,

1117 (9th Cir. 2021). “Contradiction with the medical record is a sufficient basis

for rejecting the claimant’s subjective testimony.” Carmickle, 533 F.3d at 1161.

The standard isn’t whether our court is convinced, but instead whether the ALJ’s

rationale is clear enough that it has the power to convince. Here, it does: the ALJ

cited specific, clear, and convincing examples across a multi-year period contrasting

Smartt’s subjective pain testimony with objective medical evidence.2

2.

An ALJ may also consider “whether the claimant engages in daily activities

inconsistent with the alleged symptoms.” Lingenfelter v. Astrue, 504 F.3d 1028,

1040 (9th Cir. 2007). Even if the claimant experiences some difficulty or pain, her

daily activities “may be grounds for discrediting the claimant’s testimony to the

extent that they contradict claims of a totally debilitating impairment.” Molina, 674

F.3d at 1113. The ALJ made a reasonable determination based on specific, clear,

2 ALJs commonly use the phrase “not entirely consistent” the same way the ALJ did in this case—to mean that the claimant’s testimony is inconsistent with other evidence in the record. But claimants also commonly confuse this phrasing with the ALJ improperly concluding that a claimant’s symptom testimony was not “fully corroborated” by the objective medical evidence. To avoid continuing confusion in claimants’ review of their decisions, ALJs might consider replacing the phrase “not entirely consistent” with simply “inconsistent.”

17 and convincing evidence that Smartt’s daily activities were inconsistent with the

alleged severity of her limitations.

Describing the “kinds of things [she does] on an average day,” Smartt listed

cooking, cleaning, and caring for her daughter, including bathing, feeding, and

taking her to school. She also reported doing laundry, grocery shopping with the

assistance of her mother, and completing various chores, albeit in short increments

due to pain. When asked about her hobbies, Smartt reported playing board games

and doing crafts. Citing Smartt’s responses, the ALJ reasonably concluded that

Smartt was able to “engage[] in a somewhat normal level of daily activity and

interaction” despite her limitations. In fact, Smartt’s daily activities require many

of the same “capabilities … necessary for obtaining and maintaining employment.”

It is not the court’s role to “second-guess” an ALJ’s reasonable interpretation

of a claimant’s testimony. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001);

Thomas, 278 F.3d at 959 (affirming an ALJ’s decision discounting a claimant’s

testimony after finding that the claimant “was able to perform various household

chores such as cooking, laundry, washing dishes, and shopping”). Here, the ALJ’s

determination that Smartt’s self-reported activities were inconsistent with the

constant “10/10” pain she described was not unreasonable.3

3 Smartt criticizes the ALJ for providing “a mere list of [her daily] activities,” without also listing in the same part of the ALJ’s decision all of the limitations that Smartt included when testifying about her activities. But having properly discounted

18 3.

The ALJ also properly discounted Smartt’s subjective pain testimony in light

of Smartt’s generally conservative treatment plan. “[E]vidence of ‘conservative

treatment’ is sufficient to discount a claimant’s testimony regarding severity of an

impairment.” Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (quoting Johnson

v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995)). Smartt argues that her cervical spine

surgery was not “conservative treatment.” That is true. But while the surgery was

not conservative treatment, it was an initial stabilization measure following her

injury. Overall, other than the initial surgical repair, “[t]he treatment records reveal

[that Smartt] received routine and conservative treatment since the alleged onset

date.”4 After Smartt’s surgery, the ALJ cited documented evidence of “conservative

treatment,” including physical therapy, temporary use of a neck brace and

wheelchair, and ongoing pain medication. As a result of these measures, the record

shows both self-reported and objective improvement. The ALJ did not err in

concluding that such ongoing conservative treatment and overall improvement are

Smartt’s subjective testimony elsewhere in his decision, the ALJ did not need to include in his list of Smartt’s daily activities all of her caveats accompanying her description of those activities. 4 The district court and the ALJ also acknowledged that, between 2016 and 2019, Smartt was intermittently hospitalized for pneumonia, stroke, seizures, and recurring cellulitis in her leg. But the ALJ determined that these conditions were temporary, “managed medically” with conservative treatment, and therefore “nonsevere.”

19 inconsistent with Smartt’s testimony as to the severity of her impairments. The ALJ

supported his specific, clear, and convincing findings with substantial evidence in

the record.

C.

We need not address Smartt’s remaining arguments because she waived them

by not raising them before the district court. See Greger v. Barnhart, 464 F.3d 968,

973 (9th Cir. 2006). We generally will not consider an issue raised for the first time

on appeal, with three exceptions: (1) “in the ‘exceptional’ case in which review is

necessary to prevent a miscarriage of justice or to preserve the integrity of the

judicial process,” (2) “when a new issue arises while appeal is pending because of a

change in the law,” or (3) “when the issue presented is purely one of law and either

does not depend on the factual record developed below, or the pertinent record has

been fully developed.” Id. (citations omitted). None of these exceptions apply here.5

IV.

We affirm the district court’s conclusion that the ALJ properly discounted the

opinion of Smartt’s treating physician in favor of the consultative examiner’s

opinion based on the objective medical evidence. The ALJ also provided clear and

5 Smartt fails to respond to the government’s waiver argument, except to correctly point out that her counsel before the district court raised the walker-versus-cane “inconsistency” in Dr. Gordon’s assessment. We agree that this issue was not waived, and it is addressed in Part III.A above.

20 convincing evidence for discounting Smartt’s subjective pain testimony and self-

reported limitations. In sum, the ALJ’s decision is supported by substantial

evidence.

AFFIRMED.

21