FILED
                           NOT FOR PUBLICATION
                                                                               OCT 14 2020
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


KIRK ALLEN MARSHALL,                             No.   19-35303

              Plaintiff-Appellant,               D.C. No. 3:18-cv-05546-MJP

 v.
                                                 MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,

              Defendant-Appellee.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Marsha J. Pechman, District Judge, Presiding

                            Submitted October 7, 2020**
                               Seattle, Washington

Before: CALLAHAN and CHRISTEN, Circuit Judges, and RAKOFF,*** District
Judge.




      *
             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 Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
      Appellant Kirk Marshall appeals the district court’s order affirming the

denial of Title II Social Security benefits. We have jurisdiction pursuant to 28

U.S.C. § 1291, and we affirm. We review an appeal of a denial of Title II benefits

de novo and reverse only if the decision “is either not supported by substantial

evidence or is based upon legal error.” Luther v. Berryhill, 

, 875 (9th

Cir. 2018). Because the parties are familiar with the facts of the case, we recite

only those necessary to resolve the issues on appeal.

      1. The ALJ provided “clear and convincing reasons” for rejecting

Marshall’s subjective testimony about his pain. Robbins v. Soc. Sec. Admin., 

, 883 (9th Cir. 2006) (citing Smolen v. Chater, 

, 1283–84

(9th Cir. 1996)). The ALJ identified specific inconsistencies between Marshall’s

testimony and the record evidence, such as Marshall’s testimony about his

marijuana use and its impact on his June 2009 termination from employment, and

the disjunction between his statements that he could not walk and medical evidence

showing that his gait was normal. We see no error.1




      1
              Marshall argues that the ALJ’s 2015 decision, where he was found to
be disabled for purposes of his Title XVI claim, contradicts the ALJ’s 2017 Title II
decision. However, the ALJ issued the second decision five years after the period
at issue here. The subsequent award took into account the progression of
Marshall’s degenerative disc disease. Accordingly, there is no conflict.
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      2. The ALJ did not err in its assessment of the medical evidence. First, the

ALJ properly discounted the opinions of Dr. Hoskins, a non-examining physician,

because Dr. Hoskins limited Marshall’s standing and walking capabilities solely

based on Marshall’s medical history and radiographic records, not an evaluation of

Marshall’s demonstrated functioning. In light of Marshall’s occasional complaints

and record medical evidence about his normal gait and strength, the ALJ found Dr.

Hoksins’s observations inconsistent with the record as a whole. See Ryan v.

Comm’r of Soc. Sec., 

, 1201 (9th Cir. 2008). Second, the ALJ

properly weighed the opinions of Marshall’s examining physicians, Drs.

Chilczuck, Fajardo, and Wingate, based on specific and legitimate reasons

supported by the record. See Garrison v. Colvin, 

, 1012 (9th Cir.

2014). The ALJ properly assigned Dr. Chilczuck’s first opinion limited weight

because it was inconsistent with his own medical examination and the record as a

whole. The ALJ assigned limited weight to Dr. Chilczuck’s second opinion as

well because it was based solely on Marshall’s history and radiographic imaging,

not a physical exam, and it was made after the period at issue here. The ALJ also

properly assigned limited weight to Dr. Wingate’s opinion about Marshall’s mental

health because Marshall did not disclose to her details of his marijuana use and

because his complaints were not consistent with his contemporaneous milder


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complaints to other providers. Finally, the ALJ properly assigned Dr. Fajardo’s

opinion significant weight because it was based on a physical evaluation and

consistent with both the medical record and Marshall’s own testimony.

Accordingly, we see no error in the ALJ’s assessment of the medical evidence.

      3. The ALJ did not err by rejecting Marshall’s mother’s lay statement

because the ALJ gave specific, germane reasons for doing so. See Carmickle v.

Comm’r of Soc. Sec. Admin., 

, 1163–64 (9th Cir. 2008).

Specifically, the ALJ observed that the statement gave “no indication that [it]

described limitations that existed during the period at issue” and was inconsistent

with medical evidence.

      4. The ALJ properly based its residual function capacity (RFC)

determination on limitations that it found credible. See Bayliss v. Barnhart, 

, 1217 (9th Cir. 2005). Though the ALJ erred by including in its

consideration a past job that Marshall never performed, that error was harmless

because the ALJ also considered jobs that Marshall previously performed.

      5. The ALJ’s Step Five findings were supported by substantial evidence.

See Biestek v. Berryhill, ––– U.S. ––––, 

, 1157 (2019). The ALJ

did not err when assigning Marshall’s RFC, as discussed. The ALJ also considered

the vocational expert’s testimony in which the expert acknowledged that he


                                          4
adjusted his recommendations to account for outdated listings in the Dictionary of

Occupational Job Titles.



AFFIRMED.




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