NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

RONALD J. CARINIO,

Plaintiff-Appellant,

v. NANCY A. BERRYHILL, Acting Comm issioner Social Security,

Defendant-Appellee. No. 17-35069 D.C. No. 3:16-cv-05117-MAT

MEMORANDUM *

Appeal fromthe United States District Court for the Western District of Washington Mary Alice Theiler, Magistrate Judge, Presiding

Subm itted June 8, 2018 * * Seattle, Washington Before: BYBEE and N.R. SMITH, Circuit Judges, and HUCK, * * * District Judge. 

# FILED

JUN 14 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

* * The panel unanim ously concludes this case is suitable for decision without oral argum e nt. See Fed. R. App. P. 34(a)(2).

* * * The Honorable Paul C. Huck, United States District Judge for the U.S. District Court for Southern Florida, sitting by designation.Plaintiff Ronald Carinio brought this action in the Western District of

Washington under 42 U.S.C. § 405(g), seeking review of an Adm inistrative Law Judge’s (ALJ) denial of his application for Supplem ental Security Incom e (SSI) and Disability Insurance Benefits (DIB) under Titles II and XVI of the Social Security Act. The ALJ found Carinio not disabled under the Act, and the district court affirm ed. Carinio appeals, and we affirm

. We presum e the parties’ fam iliarity with the facts and argum ents as presented in the briefs and record, and as described in full in the district court’s order. We have jurisdiction under 28 U.S.C. § 1291, and we review de novo a district court’s judgm ent affirm ing an ALJ’s denial of Social Security benefits. Buck v. Berryhill , 869 F.3d 1040, 1048 (9th Cir. 2017). First, Carinio argues that the ALJ erred by assigning only “som e weight” to the findings of Nurse Practitioner Carillo. Carillo had reported in 2013 that Carinio, am ong other lim itations, did not have the functional capacity to sit longer than one hour in a workday, or to stand or walk for even up to an hour. This lim itation is not reflected anywhere else in the m edical record. N.P. Carillo also reported in 2014 that Carinio, am ong other lim itations, had zero percent capacity to use his hands or fingers for fine m anipulation, or to grasp, turn, or twist objects. But Carinio him self said that he vacuum s, does laundry, can hold a gallon of m ilk

2at least for m ore than a couple seconds, and can dress him self, and the record

contained no indication that he perform s these tasks by any m eans other than with that am ount of hand and finger work typically required to com plete the described tasks. An ALJ m ay give less weight to the opinions of a treating or exam ining practitioner like N.P. Carillo as compared to those of non-treating or nonexam ining physicians such as Drs. Nelp, Ram sthel, and Staley, as long as the ALJ includes “findings setting forth specific, legitim ate reasons for doing so that are based on substantial evidence in the record,” Orn v. Astrue , 495 F.3d 625, 632 (9th Cir. 2007), and that are “clear and convincing.” Thomas v. Barnhart , 278 F.3d 947, 957 (9th Cir. 2002). Here, the ALJ identified the aforem entioned clear and convincing shortcom ings in N.P. Carillo’s reports, and so we find that the ALJ did not err in giving the reports only “som e weight.” See Tomasetti v. Astrue , 533 F.3d 1035, 1041 (9th Cir. 2008) (ALJ m ay give less weight to a physician’s opinion if plainly inconsistent with the record). Second, Carinio argues that the ALJ imperm issibly gave reduced weight to his own testim ony, particularly regarding his inability to work and sym ptom intensity. Where an ALJ gives reduced weight to a claim ant’s testim ony, as the ALJ did here, the ALJ m

ust provide specific, clear, and convincing reasons for doing so by “identify[ing] what testim ony is not credible and what evidence

3underm ines the claim ant’s com plaints.” Lester v. Chater , 81 F.3d 821, 834 (9th Cir. 1995); Burrell v. Colvin , 775 F.3d 1133, 1136–37 (9th Cir. 2014). The ALJ did provide such specific, clear, and convincing reasons for finding Carinio’s testim ony less than credible. The ALJ noted that Carinio’s activities “show fewer lim itations than alleged,” including his dressing, laundry, cleaning, hygiene, cooking, and m anaging of finances. The ALJ pointed out that Carinio had sought work, such as at a Target store or through the Departm ent of Veterans Affairs’ two-week Contem

porary Work Training Program

. See Bray v. Comm’r , 554 F.3d 1219, 1221, 1227 (9th Cir. 2009) (perm issible for ALJ to consider evidence of claim ant’s job search and job training activities in assessing credibility of claim ant’s professed inability to work). The ALJ also pointed to the periods of Carinio’s noncom pliance with his m edicine as set out in the record. Adm ittedly, an ALJ

m ust not draw any inferences about an individual’s sym ptom s and their functional effects from a failure to seek or pursue regular m edical treatm ent without first considering any explanations that the individual m ay provide, or other inform ation in the case record, that m ay explain infrequent or irregular visit or failure to seek m e dical treatm ent. Social Security Ruling 96-7p. But here, the ALJ did consider other explanations including those im plicated by Carinio’s period of hom elessness, and the fact that the front desk at his previous residence had “controlled” his m edicine. Although

4“claim ants should not be penalized for attem pting to lead norm al lives in the face

of their lim itations,” R eddick v. Chater , 157 F.3d 715, 722 (9th Cir. 1998), “the ALJ is perm itted to consider lack of treatm e nt in his credibility determ ination.” Burch v. Barnhart , 400 F.3d 676, 6881 (9th Cir. 2005). Carinio’s ability to live and, at tim es, seek work while off his m edication is relevant to his credibility regarding the professed sym ptom s, and the ALJ did not err in giving Carinio’s testim ony less than full weight. Third, Carinio argues that the ALJ erred in disregarding lay evidence from his fam ily m em

bers and from two Social Security interviewers. An ALJ need only provide germ ane reasons to discount the testim ony of lay witnesses. Bayliss v. Barnhart , 427 F.3d 1211, 1218 (9th Cir. 2005). As to evidence provided by Carinio’s sister and m other, the ALJ gave their statem ents “som e weight,” and adopted m ost of what they had testified to in Carinio’s Residual Functional Capacity (RFC). In the period under review, Carinio’s m other and sister had observed him closely, and the ALJ considered their testim ony and accepted it where it was consistent with the rest of the m edical evidence. The ALJ identified and considered Tom isha Carinio’s evidence of her brother’s “blurry vision,” and ultim ately rejected that evidence in light of the absence of any eye-related or

5vision-related lim itations fromthe m edical sources. 1 As to the Social Security

interviewers, Carinio argues that the ALJ erred by not m entioning their reports, which noted inter alia that Carinio was “polite,” but “dishelved with dirty clothes,” and that his clothes were “not clean,” from Septem ber 2011 and April 2012 respectively. But an “ALJ is not required to discuss evidence that is neither significant nor probative.” Howard v. Barnhart , 341 F.3d 1006, 1012 (9th Cir. 2003). Carinio argues that this evidence is significant and probative in connection with the fact that the ALJ had found that Carinio was able to handle his own groom ing. We disagree. These were casual, nonm edical lay observations of Carinio’s appearance at a tim e he was hom eless, and the ALJ did not err in failing to consider them alongside evidence of Carinio’s own testim ony about his activities of daily living. Fourth, Carinio argues that the ALJ erred in conducting the RFC determ ination by giving only “lim ited weight” to the VA’s finding of disability. In 2013, the VA had granted Carinio a nonservice-connected pension, because his

1 Carinio has been diagnosed with diabetic retinopathy, but does not argue that the ALJ erred at Step Two, and thus does not challenge the ALJ’s noninclusion of diabetic retinopathy as a “severe im pairm ent.” The ALJ noted: “The claim ant described blurry vision. He has diabetic retinopathy. As of February 2014, he reported som e leakage of blood vessels behind the eye. However, no provider gave functional lim itations related to that condition.” 6diagnoses of “diabetes with peripheral neuropathy, skin condition, and retinopathy

. . . are considered to be in and of them selves perm anently and totally disabling for VA pension purposes.” Given the “m arked sim ilarity between these two federal disability program s,” McCartey v. Massanari , 298 F.3d 1072, 1076 (9th Cir. 2002), “[a] n ALJ m

ust consider the VA’s finding in reaching his decision and the ALJ m ust ordinarily give great weight to a VA determ ination of disability.” Luther v. Berryhill , 2018 WL 2473490 at *4 (9th Cir. June 4, 2018) (quoting McLeod v. Astrue , 640 F.3d 881, 886 (9th Cir. 2011)). But VA ratings are “not conclusive,” and do not “necessarily com pel the SSA to reach an identical result.” Id . As such, an ALJ m ay give less weight to a VA rating “if he gives persuasive, specific, valid reasons for doing so that are supported by the record.” Id. (quoting Valentine v. Comm’r Soc. Sec. Admin. , 574 F.3d 685, 695 (9th Cir. 2009)). In Luther , the claim ant had applied for disability benefits on the basis of her service-related PTSD and degenerative disc disease. The VA had found the claim ant 100 percent disabled as a result of the PTSD, 10 percent disabled as a result of an infection, and 30 percent disabled as a result of her spine disease, resulting in a total 100 percent disability rating. The ALJ explicitly stated that “[o] ne hundred percent disability VA has no bearing .” Id. at *1 (em phasis added). The ALJ noted that “[i] t’s som e thing we consider,” but the ALJ failed to address

7“how she had considered and weighed the VA’s rating,” and failed to “articulate

any reasons for rejecting it.” Id. at *4. “Sim ply m entioning the existence of a VA rating in the ALJ’s decision is not enough.” Id

. Here, the ALJ did review and consider the VA’s finding of disability, both at the hearing and in the decision, but noted (1) that the Social Security regulations use different standards and do not provide that the im pairm e nts at issue are totally and perm anently disabling “in and of them selves,” as supported by the testim ony of Dr. Nelp, and (2) that the ALJ had reviewed evidence that the VA did not have before it, including Dr. Ram sthel’s conclusion that Carinio can perform light work. On the facts of this case we cannot say that the ALJ erred in giving the VA disability rating “lim ited weight” for the two reasons he articulated. The VA disability rating is a two-page conclusion without analysis: on the basis of the diagnoses alone, Carinio’s im pairm ents rendered himeligible for certain VA benefits. The per se nature of the VA’s determ ination in Carinio’s case renders it

m ostly useless for the ALJ’s very different task of conducting the five-part disability determ ination process under the applicable SSA regulations. We find that the ALJ did not err in giving the VA disability rating “lim ited weight,” because it referred to and analyzed the VA disability rating, explained why the VA rating cannot as a practical m atter be deferred to in this instance, and ultim ately

8gave that rating only “lim ited weight” with reference to and with the support of Dr.

Nelp’s testim ony. Fifth, Carinio argues that the ALJ erred at Step Five by im properly relying on vocational expert testim ony that was inconsistent with the Dictionary of Occupational Titles (DOT). An ALJ has an affirm ative responsibility to inquire and reconcile any conflicts or inconsistencies between a vocational expert’s testim ony and the DOT. Zavalin v. Colvin , 778 F.3d 842, 846 (9th Cir. 2015). The reason is to ensure that the claim ant can indeed performan occupation “involving DOT requirem ents that appear m ore than the claim ant can handle.” Id. Here, the vocational expert identified three jobs that Carinio could perform froma sedentary position—washroom operator, ink printer, and reel assem bler—even with his legs elevated at waist height. T he ALJ asked whether his testim ony was “consistent with the [DOT] ,” to which the vocational expert responded that it had been, but “the leg elevation would not be in the DOT, and so that part’s based on m y experience with those jobs.” Carinio does not identify any inconsistency, but argues that it is “evident” that such work cannot be conducted by an em ployee who “must use a cane while st anding and walking, who needs to be able to change his positions at will, and who needs to keep his feet elevated while seated.” But “being able to change position at will” is not part of Carinio’s RFC, and finds

9support in the record only in the N.P. Carillo reports, which the ALJ correctly gave

only lim ited weight. And as to his cane, Carinio does not explain how using a cane would be incompatible with the three jobs. As to his feet, Carinio’s argum ent is based on the unsupported argum ent that one could not perform these sedentary jobs with one’s feet elevated. Carinio also argues that on further questioning, the vocational expert testified that if the individual needed additional 20-m inute breaks, or if the individual were absent two or three days per m onth, that any of these lim itations would elim inate com petitive em

ploym ent. But none of these lim its are part of Carinio’s RFC, and the m e dical record does not support the existence of any such lim its. The ALJ did not err in relying on the vocational expert’s testim ony indicating that there were no inconsisten cies between his testim ony and the DOT, and in relying on the expert’s testim ony that based on his experience, the three jobs m ay be perform ed with one’s feet elevated at waist height. The district court’s judgm ent affirm ing the ALJ’s denial of benefits is AFFIRMED

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