NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        OCT 9 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

DAVID R. ROBERTS,                               No.    18-35559

                Plaintiff-Appellant,            D.C. No. 3:17-cv-05544-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

                          Submitted September 1, 2020**
                              Seattle, Washington

Before: BYBEE and COLLINS, Circuit Judges, and STEARNS,*** District Judge.

      Petitioner David R. Roberts appeals the denial of his application for

disability insurance benefits and Supplemental Security Income. The district court


      *
             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 Richard G. Stearns, United States District Judge for
the District of Massachusetts, sitting by designation.
had jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3). We have jurisdiction

under 28 U.S.C. § 1291. “A district court’s order affirming, reversing, or

modifying the denial of disability insurance benefits is reviewed de novo.” Mayes

v. Massanari, 

, 458 (9th Cir. 2001). “This court may set aside the

Commissioner [of Social Security]’s denial of benefits when the [Administrative

Law Judge, or] ALJ’s findings are based on legal error or are not supported by

substantial evidence in the record as a whole.” Aukland v. Massanari, 

, 1035 (9th Cir. 2001). We affirm.

      1. Substantial evidence supports the ALJ’s evaluation of Roberts’s treating

physician’s medical records. “The medical opinion of a claimant’s treating

physician is given ‘controlling weight’ so long as it ‘is well-supported by

medically acceptable clinical and laboratory diagnostic techniques and is not

inconsistent with the other substantial evidence in [the claimant’s] case record.”

Trevizo v. Berryhill, 

, 675 (9th Cir. 2017) (quoting 20 C.F.R. §

404.1527(c)(2)). Here, Roberts’s treating physician did not provide an opinion

about Roberts’s functional limitations. She did, however, record several clinical

observations and diagnoses over the course of several visits with Roberts.

Contrary to Roberts’s argument, the ALJ did not reject the treating physician’s

observations and diagnoses, including a diagnosis of depression. Rather, the ALJ

acknowledged the depression diagnosis and, pointing to several parts of the record,



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determined that Roberts’s depression did not rise to the level of a severe mental

impairment. The ALJ’s interpretation of the treating physician’s medical records

was not unreasonable.

      2. Substantial evidence supports the ALJ’s evaluation of the opinions of

Roberts’s examining physicians. “An ALJ is not required to take medical opinions

at face value, but may take into account the quality of the explanation when

determining how much weight to give a medical opinion.” Ford v. Saul, 

, 1155 (9th Cir. 2020). First, substantial evidence supports the ALJ’s decision

to give great weight to the opinion of the examining physician whom Roberts

visited the day before his disability onset date, who documented a comprehensive

physical examination and who recorded observations consistent with his

conclusions as well as other clinical observations and testimony in the record.

See 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4) (“Generally, the more consistent a

medical opinion is with the record as a whole, the more weight we will give to that

medical opinion.”). Moreover, the ALJ accounted for later-produced MRI

evidence (which the examining physician could not have reviewed) by finding

Roberts even more physically limited than had the examining physician. Second,

substantial evidence supports the ALJ’s decision to give lesser weight to the

opinion of a physical examiner and second individual of disputed identity who

produced a Physical Functional Evaluation for the Washington State Department



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of Social and Health Services (DSHS). 

. Here, the ALJ

noted that the DSHS report contained relatively limited explanations and

documentation to support its conclusions, and lacked any documented observations

concerning Roberts’s gait. See 20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3) (“The

more a medical source presents relevant evidence to support a medical opinion,

particularly medical signs and laboratory findings, the more weight we will give

that medical opinion. The better an explanation a source provides for a medical

opinion, the more weight we will give that medical opinion.”); 20 C.F.R. §§

404.1527(c)(4), 416.927(c)(4). The ALJ also identified specific reasons why he

deemed the other examining physician’s examination more consistent with others

in the record. The ALJ’s evaluation was not unreasonable.

      3. Substantial evidence supports the ALJ’s decision to give little weight to

the opinion of a non-examining physician who reviewed the DSHS report. In

general, “the opinion of an examining physician is entitled to greater weight than

the opinion of a nonexamining physician.” Ryan v. Comm’r of Soc. Sec., 

, 1198 (9th Cir. 2008). “The weight afforded a non-examining physician’s

testimony depends ‘on the degree to which they provide supporting explanations

for their opinions.’”

(quoting 20 C.F.R. § 404.1527(d)(3)) (current

version at 20 C.F.R. § 404.1527(c)(3)). Here, the ALJ noted that the non-

examining physician based his conclusions on an evaluative report which the ALJ



                                         4                                    18-35559
reasonably assessed as relatively incomplete. Further, the ALJ noted that the non-

examining physician’s opinion regarding the maximum weight that Roberts could

carry was expressly contradicted by Roberts’s own testimony. The ALJ’s decision

to attribute lesser weight to the non-examining physician’s opinion was not

unreasonable.

      4. The ALJ did not err in evaluating the medical findings of two

orthopedists who did not provide opinions about Roberts’s functional limitations.

Roberts’s presentation of alternative interpretations of these physicians’ clinical

observations and diagnoses does not render the ALJ’s assessment of the medical

evidence unreasonable.

      5. Substantial evidence supports the ALJ’s decision to find Roberts’s

testimony regarding the severity of his impairments only partially credible. When

evaluating a claimant’s testimony, an 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.” Trevizo v. 

. If this step is satisfied, absent

evidence of malingering, “the ALJ can reject the claimant’s testimony about the

severity of [his] symptoms only by offering specific, clear and convincing reasons

for doing so.”

insufficient; rather, the ALJ must identify

what testimony is not credible and what evidence undermines the claimant’s



                                           5                                    18-35559
complaints.” Lester v. Chater, 

, 834 (9th Cir. 1996). Here, the ALJ

identified specific instances where Roberts’s allegations of functional limitations

conflicted with medical evidence in the record and other evidence of Roberts’s

lived activities, and outlined how aspects of Roberts’s testimony were

unsupported. The ALJ’s credibility determination was not legal error, nor

unreasonable.

      6. Roberts’s other arguments rely on his arguments that the ALJ erred in

weighing the medical evidence and discrediting his testimony. The ALJ did not

unreasonably weigh Roberts’s testimony and the medical evidence; as a result,

substantial evidence supports the ALJ’s determinations with regards to Roberts’s

impairments, residual functional capacity, and job availability.

      AFFIRMED.




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