Donna Lenocker v. Michael Astrue

FILED
NOT FOR PUBLICATION MAY 11 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DONNA LENOCKER, No. 09-35634
Plaintiff - Appellant, D.C. No. 3:07-cv-01742-ST
v.
MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner
Social Security Administration,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, Senior District Judge, Presiding
Submitted May 6, 2010 **
Portland, Oregon
Before: KOZINSKI, Chief Judge, BEA and IKUTA, Circuit Judges.
The ALJ didn’t err in declining to find Lenocker’s degenerative disc disease
a severe impairment because it didn’t satisfy the duration requirement. See 20
C.F.R. § 404.1509. When Lenocker saw a doctor in 2006 for a back injury, she
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
page 2
told the doctor that she had recovered from her previous injuries. For her present
injury, the doctor projected that she could return to work in three to six weeks.
The ALJ properly credited the opinion of Dr. Leland and discredited the
opinions of Dr. Cole and the DDS physicians regarding the severity of Lenocker’s
non-exertional limitations. See Carmickle v. Comm’r, 533 F.3d 1155, 1164 (9th
Cir. 2008). Leland’s evaluation was the latest and most comprehensive.
The ALJ properly discredited Lenocker’s testimony because there was
evidence of malingering. See Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir.
2006). And the ALJ gave germane reasons for rejecting the testimony of the lay
witnesses. See Carmickle, 533 F.3d at 1164. Lester’s assessment was at odds with
Lenocker’s ability to work as a caregiver for six months, and the opinions of
Lenocker’s family were inconsistent with the medical record.
The vocational hypothetical wasn’t flawed because it contained all of the
limitations the ALJ found credible. See Bayliss v. Barnhart, 427 F.3d 1211, 1217
(9th Cir. 2005).
AFFIRMED.