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NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAIME M. BARTON, 

Plaintiff-Appellant, 

 v. 

MARTIN J. O’MALLEY, Commissioner of 

Social Security, 

Defendant-Appellee.

No. 22-56002 

D.C. No. 3:19-cv-02431-JLB 

MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

Jill L. Burkhardt, Magistrate Judge, Presiding

Submitted February 13, 2024

**

Pasadena, California

Before: W. FLETCHER, NGUYEN, and LEE, Circuit Judges.

Jaime Barton appeals the district court’s order affirming the Commissioner 

of Social Security’s denial of his application for disability benefits. We review the 

district court’s order de novo, and may reverse a denial of benefits only when that

* 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).

FILED

MAR 5 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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decision is “based on legal error or not supported by substantial evidence in the 

record.” Revels v. Berryhill, 874 F.3d 648, 653–54 (9th Cir. 2017). We have 

jurisdiction under 28 U.S.C. § 1291, and we affirm.

Barton alleges disability due to his ankle pain, lower back pain, and carpal 

tunnel syndrome. The administrative law judge applied the Commissioner’s fivestep “sequential evaluation process” to determine whether Barton was disabled 

under the Social Security Act and determined that he was not. 20 C.F.R. 

§ 404.1520(a)(4). On appeal, Barton challenges step four of the ALJ’s analysis. 

1. Barton first argues that the ALJ failed to set forth clear and convincing 

reasons for discrediting his testimony about his pain symptoms. An ALJ may

discredit a claimant’s testimony about the severity of his symptoms if the ALJ

offers “specific, clear and convincing reasons for doing so.” Garrison v. Colvin, 

759 F.3d 995, 1014–15 (9th Cir. 2014). Those reasons must be supported by 

substantial evidence, and the ALJ must identify the specific testimony he or she 

finds incredible and explain what evidence undermines that testimony. Treichler v. 

Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014).

Here, the ALJ provided four such reasons. 

First, the ALJ faulted Barton for his failure to ever seek treatment for his 

lower back pain. The ALJ was “permitted to consider lack of treatment” in his

determination of Barton’s credibility. Burch v. Barnhart, 400 F.3d 676, 681 (9th 
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Cir. 2005). 

Second, the ALJ discredited Barton because he was noncompliant with 

treatment recommendations made by his medical providers, including several 

recommendations from Dr. Chodos, his orthopedic surgeon, to use an “ankle 

brace” or “high top shoe or boot” instead of flip flops. The ALJ was entitled to 

consider Barton’s “inadequately explained failure to . . . follow a prescribed course 

of treatment.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). 

Third, the ALJ noted that, despite Barton’s noncompliance with his 

recommendations, Dr. Chodos prescribed increasingly conservative treatments for 

Barton’s ankle injury. For example, at their first appointment in September 2016, 

Dr. Chodos suggested Barton consider surgical treatment for his ankle. By 2018, 

Dr. Chodos only recommended that Barton use a “compression stocking” and a 

“more supportive shoe than a flip flop.” The ALJ was entitled to rely on evidence

of “conservative treatment” to discount Barton’s testimony regarding severity of an 

impairment. Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007). 

And finally, the ALJ discounted Barton’s pain testimony because Barton was 

“previously able to work with similar symptoms.” The ALJ was entitled to 

consider evidence of Barton’s gainful employment during symptomatic periods in 

assessing his credibility. Ahearn v. Saul, 988 F.3d 1111, 1117 (9th Cir. 2021).

2. Barton next challenges the ALJ’s decision to reject the medical opinions 
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of three of his treating physicians—Dr. Chodos; Dr. Fitzgerald, his orthopedic hand 

surgeon; and an unidentified third doctor who assessed Barton for his ankle pain in 

November 2016. Those opinions conflict with other medical opinion testimony in 

the record, and can thus be rejected by the ALJ for “specific and legitimate 

reasons” supported by substantial evidence. Bayliss v. Barnhart, 427 F.3d 1211, 

1216 (9th Cir. 2005).

The ALJ reviewed “Medical Information Questionnaires” filled out by 

Dr. Chodos and Dr. Fitzgerald, and a “Physical Residual Functional Capacity 

Assessment” filled out by the unidentified physician. These documents outlined 

extreme physical limitations for Barton but were not conducted in conjunction with 

any physical assessment of Barton’s injuries. The ALJ determined that these 

documents were unpersuasive because they relied on Barton’s “subjective 

symptoms rather than objective medical findings.” That is a legitimate reason for 

rejecting medical testimony. “An ALJ may reject a treating physician’s opinion if 

it is based to a large extent on a claimant’s self-reports that have been properly 

discounted as incredible.” Tommasetti, 533 F.3d at 1041 (internal quotations 

omitted). Because the ALJ provided a specific, legitimate, and substantiated 

reason for rejecting the medical opinions of those treating physicians, we uphold 

that determination. 

AFFIRMED.