Ann Louise Aarestad v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Michael J. Astrue

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANN LOUISE AARESTAD,
Plaintiff - Appellant,
v.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Michael J. Astrue,
Defendant - Appellee.
No. 10-35925
D.C. No. 9:09-cv-00138-JCL
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Jeremiah C. Lynch, Magistrate Judge, Presiding
Argued and Submitted August 29, 2011
Seattle, Washington
Before: HAWKINS, McKEOWN, and BEA, Circuit Judges.
Ann Louise Aarestad, a 55-year-old former salesperson for an automotive
tool manufacturer, appeals the district court’s order granting summary judgment to
the Commissioner of Social Security (“Commissioner”). The Commissioner
FILED
SEP 16 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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As applicable here, widow’s insurance benefits are a survivor’s benefit1
based on the widow’s disability and the deceased person’s insured status. 42
U.S.C. § 402(e)(1)(B)(ii). The widow need not be an insured in her own right, but
she does need to be “disabled.”
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denied Aarestad’s application for disabled widow’s insurance benefits and1
supplemental security income benefits under Titles II and XVI of the Social
Security Act. Because the parties are familiar with the facts, we repeat them here
only as necessary to explain our decision. We affirm.
This court reviews de novo a district court’s order affirming an
administrative law judge’s (ALJ) denial of benefits. Tommasetti v. Astrue, 533
F.3d 1035, 1038 (9th Cir. 2008). This court must affirm the district court’s
decision if the ALJ applied the correct legal standards and substantial evidence
supports the decision. Id. Substantial evidence means “more than a mere
scintilla,” or “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971). The Commissioner’s findings “as to any fact, if supported by substantial
evidence, shall be conclusive.” 42 U.S.C. § 405(g).
The ALJ had substantial evidence to support his findings. First, the ALJ
properly found that Aarestad’s testimony as to the nature and extent of her claimed
disability was not credible. The evidence showed that Aarestad worked only

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sporadically before the alleged onset of disability (which suggests that her decision
not to work was not based on disability); Aarestad admitted to using her hands and
arms regularly in daily activities; and, the objective medical evidence did not
support her claims of disabling limitations.
Second, the ALJ properly rejected the opinions of two of Aarestad’s treating
physicians, Drs. Terry Smith and Mark Askew. The opinions of these physicians
were contradicted by the report of the non-examining state agency physician who
testified Aarestad could perform a modified range of light work. Because of this
contradiction, the ALJ was required to give “specific and legitimate” reasons for
rejecting the treating physician’s opinions. Widmark v. Barnhart, 454 F.3d 1063,
1066–67 (9th Cir. 2006).
The ALJ gave specific and legitimate reasons for rejecting Drs. Smith and
Askew’s opinions. First, the ALJ found that Dr. Smith’s opinions were
inconsistent with Aarestad’s own admitted daily activities and abilities and with
actions that Aarestad performed at the hearing. Second, the ALJ noted that Dr.
Smith’s report was internally inconsistent as to the extent to which Aarestad could
use her right hand. Third, the ALJ rejected Dr. Askew’s opinions because Dr.
Askew had relied heavily and uncritically on Aarestad’s subjective report of
symptoms and limitations. Finally, the ALJ noted that Dr. Askew had not treated

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Aarestad for fourteen years prior to Aarestad requesting Dr. Askew’s opinion.
This court has held that where the ALJ has determined that a claimant’s description
of her limitations was not entirely credible, the ALJ reasonably could discount a
physician’s opinion “that was based on those less than credible statements.” Bray
v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009).
Third, the ALJ did not commit reversible error in determining Aarestad’s
severe impairments at step two of the sequential evaluation process. Aarestad
contends the ALJ erred by not including an anxiety disorder in the list of her severe
impairments. However, a physician’s assistant was the only person to diagnose
Aarestad with an anxiety disorder. Only licensed physicians, psychologists,
optometrists, and podiatrists can establish the presence of a “medically
determinable impairment.” 20 C.F.R. § 404.1513(a), (d).
Aarestad also maintains that the ALJ should have categorized her chronic
obstructive pulmonary disease as a severe impairment. However, even assuming
that the ALJ erred in omitting chronic obstructive pulmonary disease as a severe
impairment, this error was harmless. There was no evidence that this impairment
would affect Aarestad’s ability to perform her past work as a salesperson.
AFFIRMED.

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