Barbara Jean Nathan v. CAROLYN W. COLVIN, Commissioner of the Social Security Administration

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BARBARA JEAN NATHAN,
Plaintiff - Appellant,
v.
CAROLYN W. COLVIN, Commissioner
of the Social Security Administration,
Defendant - Appellee.
No. 12-35797
D.C. No. C11-6054-JPD
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
James P. Donahue, Magistrate Judge, Presiding
Argued and Submitted November 6, 2013
Seattle, Washington
Before: SCHROEDER and PAEZ, Circuit Judges, and BENITEZ, District Judge.**
Barbara Jean Nathan appeals the district court’s judgment affirming the
denial of disability benefits by the Commissioner of the Social Security
Administration. We affirm.
FILED
JAN 03 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Roger T. Benitez, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.

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We review de novo a district court’s order upholding a decision by the
Social Security Commissioner that denies benefits to an applicant. Batson v.
Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). “The
Commissioner’s decision must be affirmed . . . if supported by substantial
evidence, and if the Commissioner applied the correct legal standards.” Id.
1. Nathan challenges the determination of the Administrative Law Judge
(ALJ) that medical improvement occurred because the ALJ failed to consider that
Nathan’s original condition also caused subsequent related medical problems in her
feet, legs and lumbar spine. This argument was not raised in the district court and
is therefore waived. See Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997).
2. Even were this argument not waived, the ALJ conducted the medical
improvements analysis in accordance with the applicable regulations. Under the
regulations that govern the disability determination process, an ALJ undertaking a
continuing disability determination is required to consider whether there is any
improvement for those impairments that were “present at the time” of the last
finding of disability. 20 C.F.R. §§ 404.1594(b)(1), 416.994(b)(1)(i). The ALJ
therefore properly considered whether Nathan’s recognized medically
determinable impairments had improved since the initial disability finding.
Similarly, the ALJ properly restricted the initial residual functional capacity (RFC)
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assessment to consideration of only the medical improvements to her preexisting
medically determinable impairments. See 20 C.F.R. § 404.1594(f)(4) and 20
C.F.R. § 416.994(b)(1)(iii). At a later step in the analysis, the ALJ correctly
considered Nathan’s new impairments in determining whether all of her current
impairments in combination were severe. 20 C.F.R. § 404.1594(f)(6);
416.994(b)(1)(v). The ALJ therefore properly followed the regulatory directive
and did not consider Nathan’s additional medical concerns as part of the medical
improvement determination.
Substantial evidence also supports the ALJ’s determination that Nathan
experienced medical improvement. Although the ALJ accorded minimal weight to
the opinions of two of Nathan’s treating physicians, Drs. Johnson and Deacon, this
finding is supported by substantial evidence. These medical opinions were
contradicted by other medical records provided by Nathan, and the ALJ thoroughly
explained her reasoning for resolving these inconsistencies against Nathan. An
ALJ is responsible for resolving conflicts and inconsistencies in the record, and
where, as here, the decision is supported by specific, cogent reasons, we must
uphold it. Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006). Moreover, the
ALJ was not required to consider the records or opinions of the doctors treating
Nathan’s subsequent back and spine conditions as these conditions were not
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present at the time of her initial disability determination and thus were not relevant
to determining medical improvement. See 20 C.F.R. § 404.1594(b)(1).
We therefore agree with the district court that the ALJ did not err in
determining that Nathan had experienced medical improvement.
3. Substantial evidence also supports the ALJ’s RFC finding, which did not
encompass Nathan’s alleged post traumatic stress disorder (PTSD), dissociative
amnesia or cognitive disorder as medically determinable impairments. The ALJ
provided specific and cogent reasons for rejecting Nathan’s diagnoses of PTSD
and dissociative amnesia, including that they were provided by a nurse practitioner
and refuted by examining physician Dr. Choi. See 20 C.F.R. §§ 404.1513(a),
416.913(a). Additionally, the ALJ clearly articulated the reasons for rejecting
Nathan’s cognitive disorder diagnosis. Where an ALJ provides clear and
convincing reasons for rejecting the diagnosis of a physician, it should be upheld.
See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996).
Substantial evidence also supports the ALJ’s decision not to incorporate
Nathan’s claims of chronic pain in the RFC finding. Nathan provided neither
evidence of how this pain had a functional effect on her ability to perform work,
nor evidence to refute the conclusion that the pain could be managed with proper
medication. See Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 600-01
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(9th Cir. 1999). We therefore conclude that substantial evidence supported the
ALJ’s RFC finding.
4. Substantial evidence supports the ALJ’s credibility determination. While
“questions of credibility and resolution of conflicts in the testimony are functions
solely of the Secretary,” the ALJ’s credibility findings must be supported by
specific, cogent reasons. See Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.
1982)(quoting Waters v. Gardner, 452 F.2d 855, 858 n.7 (9th Cir. 1971)); Greger,
464 F.3d at 972. Here, the ALJ provided clear and specific reasons for questioning
Nathan’s credibility that are supported by substantial evidence, including
contradictions with Nathan’s own testimony and her medical records. We
therefore find no error in the ALJ’s decision to discount Nathan’s credibility.
5. During the disability determination process, a vocational expert may be
used to assist the ALJ in determining whether a claimant, in light of her RFC, can
engage in some type of substantial gainful activity that exists in significant
numbers in the national economy. See Roberts v. Shalala, 66 F.3d 179, 184 (9th
Cir. 1995). Nathan argues that the hypothetical question the ALJ posed to the
vocational expert should have included all of the moderate limitations identified in
Section I of the Mental Residual Functional Capacity Assessment (MRFCA) form.
The ALJ, however, did not err in excluding these limitations. As instructed in the
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Social Security Administration Program Operations Manual System (POMS),
Section I of the MRFCA is not an RFC assessment. POMS DI
24510.060(B)(4)(a). Instead, the ALJ is to use Section III of the form in
determining a claimant’s RFC. Id. Here, the ALJ correctly included all limitations
identified in Section III of the MRFCA. We therefore affirm the district court’s
ruling that the ALJ did not err in excluding some of the moderate limitations
identified in Section I of the MRFCA from the hypothetical question posed to the
vocational expert. See Osenbrock v. Apfel, 240 F.3d 1157, 1163-64 (9th Cir. 2001)
(holding that an ALJ’s hypothetical need not include properly rejected limitations).
AFFIRMED.
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