NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DARYL VOOGE, 

Plaintiff-Appellant, 

 v. 

ANDREW M. SAUL, Commissioner of 

Social Security, 

Defendant-Appellee.

No. 19-36115 

D.C. No. 4:19-cv-05036-MKD 

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of Washington

Mary K. Dimke, Magistrate Judge, Presiding

Submitted March 5, 2021**

Seattle, Washington

Before: RAWLINSON and BYBEE, Circuit Judges, and ENGLAND,*** Senior 

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 Morrison C. England, Jr., Senior United States District 

Judge for the Eastern District of California, sitting by designation.

FILED

MAR 18 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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Appellant Daryl Vooge appeals the district court’s affirmance of the 

Commissioner of Social Security’s denial of disability benefits. Appellant

challenges the findings of the administrative law judge (“ALJ”) who conducted the 

prescribed sequential evaluation of Appellant’s claim and found that any 

impairments he had were not severe. We have jurisdiction pursuant to 28 U.S.C. 

§ 1291. We review the “district court’s order affirming the ALJ’s denial of social 

security benefits de novo . . . and will disturb the denial of benefits only if the 

decision contains legal error or is not supported by substantial evidence.” 

Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citations and internal 

quotation marks omitted).

1. The ALJ provided “specific and legitimate reasons that are supported 

by substantial evidence” in weighing conflicting medical opinions. Lester v. 

Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). The testimony of a non-examining 

medical advisor may support an ALJ’s rejection of an examining physician’s 

conclusions. See, e.g., Magallanes v. Bowen, 881 F.2d 747, 751-52 (9th Cir.

1989). Here, the ALJ rejected an examining physician’s opinion with reference to 

the medical record, contrary medical opinions, and inconsistencies in Appellant’s 

testimony. The ALJ determined that the examining physician’s opinion deserved 

little weight, as the examination took place more than two years after the date last 

insured, and it was inconsistent with objective medical evidence. In contrast, the 
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ALJ was persuaded by a non-examining physician who thoroughly reviewed the 

entire record and defended his positions at the disability hearing. The ALJ acted 

within her authority in making that determination. See Ford v. Saul, 950 F.3d 

1141, 1154 (9th Cir. 2020).

2. The ALJ also permissibly concluded that Appellant’s impairments 

were not severe. A finding of disability requires a severe medically determinable 

physical or mental impairment (or combination of impairments) that meets the 

duration requirement. 20 C.F.R. § 404.1520(a)(4)(ii). A “severe impairment” 

must “significantly limit[]” the claimant’s “physical or mental ability to do basic 

work activities.” Id. § 404.1520(c); see id. § 404.1522. An ALJ’s conclusion that 

a claimant lacks a medically severe impairment or combination of impairments

must be supported by substantial evidence. See Webb v. Barnhart, 433 F.3d 683, 

687 (9th Cir. 2005). Here, the ALJ made her determination based on a thorough 

review of the medical record. The ALJ found further support in the testimony of 

two medical experts. The ALJ’s conclusions were thus supported by substantial 

evidence.

3. The ALJ permissibly discounted Appellant’s testimony, as well. “An 

ALJ engages in a two-step analysis to determine whether a claimant's testimony 

regarding subjective pain or symptoms is credible.” Garrison v. Colvin, 759 F.3d 

995, 1014 (9th Cir. 2014). “[T]he ALJ must determine whether the claimant has 
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presented objective medical evidence of an underlying impairment which could 

reasonably be expected to produce the pain or other symptoms alleged.” Id. 

(citation omitted). “If . . . there is no evidence of malingering, the ALJ can reject 

the claimant’s testimony about the severity of her symptoms only by offering 

specific, clear and convincing reasons for doing so.” Id. at 1014-15 (citation and 

internal quotation marks omitted).

The ALJ acknowledged that “the claimant suffered from medically 

determinable impairments of degenerative disc disease of the cervical, lumbar and 

thoracic spines . . . through the date last insured . . . .” However, the ALJ found the 

records “devoid of any objective findings establishing these conditions as ‘severe’ 

impairments.” While the ALJ recognized that Appellant complained of serious 

back pain in May 2006 and February 2009 medical visits, she noted unremarkable 

findings and observations, such as Appellant appearing in no acute distress in 

February 2009. In referencing a July 2009 medical treatment for gastrointestinal 

bleed, the ALJ acknowledged that the record mentions chronic back pain; however, 

the ALJ highlighted that back pain was not listed as a symptom, and medical 

observations were unremarkable for spinal health, range of motion, and 

motor/sensory deficits. The ALJ permissibly concluded that this was “inconsistent 

with the claimant’s allegations of disabling limitations during this period.” The 

ALJ’s citation to the expert medical opinions of two physicians further bolstered 
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these findings. The ALJ thus met the requisite standard of providing “specific, 

clear and convincing reasons” for rejecting Appellant’s claims of severe 

impairment during the relevant period. Garrison, 759 F.3d at 1014-15.

AFFIRMED.