NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FREDERICK LARRY REBENSDORF, 

Plaintiff-Appellant, 

 v. 

NANCY A. BERRYHILL, Commissioner of 

Social Security, 

Defendant-Appellee.

No. 18-35305 

D.C. No. 3:16-cv-01619-SB 

MEMORANDUM*

Appeal from the United States District Court

for the District of Oregon

Michael W. Mosman, District Judge, Presiding

Submitted May 13, 2019**

Portland, Oregon

Before: N.R. SMITH, WATFORD, and R. NELSON, Circuit Judges.

Frederick Rebensdorf appeals the district court’s order affirming the

Commissioner of Social Security’s denial of his application for disability insurance 

benefits under Title II of the Social Security Act. We review the district court’s 

 

* 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

MAY 16 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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order de novo and reverse only if the Administrative Law Judge’s (“ALJ”)

“decision was not supported by substantial evidence in the record as a whole or if 

the ALJ applied the wrong legal standard.” Molina v. Astrue, 674 F.3d 1104, 1110 

(9th Cir. 2012). “[W]e may not reverse an ALJ’s decision on account of an error 

that is harmless.” Id. at 1111. We affirm.

First, the ALJ did not err in discounting Rebensdorf’s testimony regarding 

the severity of his impairments. Testimony from multiple sources indicated that 

Rebensdorf’s pain symptoms were inconsistent with objective findings and that 

Rebensdorf exaggerated his pain. See Batson v. Comm’r of Soc. Sec. Admin., 359 

F.3d 1190, 1196 (9th Cir. 2004); Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th 

Cir. 1997) as amended on reh’g (Sept. 17, 1997) (explaining that an ALJ can take 

into consideration “testimony from physicians and third parties concerning the 

nature, severity, and effect of the symptoms of which [the claimant] complains”). 

These were specific, clear, and convincing reasons for finding Rebensdorf’s 

testimony only partially credible. See Morgan v. Comm’r of Soc. Sec. Admin., 169 

F.3d 595, 599–600 (9th Cir. 1999). “When evidence reasonably supports either 

confirming or reversing the ALJ’s decision, we may not substitute our judgment 

for that of the ALJ.” Batson, 359 F.3d at 1196. 

Second, the ALJ did not err in discounting the contradicted medical opinion

evidence of Rebensdorf’s examining physician, Dr. Ogisu, and treating physician, 
3 

Dr. Gillingham. The ALJ provided specific and legitimate reasons for assigning 

Dr. Ogisu’s contradicted opinion “little weight.” See Lester v. Chater, 81 F.3d 

821, 830–31 (9th Cir. 1995) as amended (April 9, 1996). As Dr. Ogisu himself 

noted, his findings pertained to Rebensdorf’s present, rather than long term,

impairment, as an injury had exacerbated his condition, but was expected to 

improve in one to two weeks, far less than the requisite “continuous period of not 

less than 12 months.” See 42 U.S.C. § 1382c(a)(3)(A). The ALJ was not required 

to recontact Dr. Ogisu because the medical record was sufficient to make a 

disability determination. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 

2005).

The ALJ similarly provided the following specific and legitimate reasons for 

discounting treating physician Dr. Gillingham’s opinion: 1) he is a family 

practitioner and his opinion did not square with Dr. Brahms’s, who is an 

orthopedic specialist; 2) his opinion was inconsistent with imaging reports and 

examination results and was unsupported by any EMG results; and 3) his opinion 

did not properly account for Rebensdorf’s inconsistencies and exaggerations. See 

Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001).

Third, for many of the same reasons, the ALJ did not commit reversible 

error in discounting the testimony of lay witness Marcella Kroger, Rebensdorf’s 

wife, regarding Rebensdorf’s limitations and capabilities. Kroger’s testimony as to 
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Rebensdorf’s pain symptoms was inconsistent with the medical evidence, 

including imaging reports and examination results that, as interpreted by Dr. 

Brahms, showed only mild impairment. Lewis v. Apfel, 236 F.3d 503, 511 (9th 

Cir. 2001). Although Kroger’s interest in the case, as a family member, was not a 

germane reason to discount her testimony, the ALJ’s error as to this additional 

reason was harmless. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 

694 (9th Cir. 2009).

Fourth, the ALJ did not err in assigning the Veterans Administration’s 

(“VA”) 100% disability rating “little weight.” “[A]n ALJ must ordinarily give 

great weight to a VA determination of disability,” but an “ALJ may give less 

weight to a VA disability rating if he gives persuasive, specific, valid reasons for 

doing so that are supported by the record.” McCartey v. Massanari, 298 F.3d 

1072, 1076 (9th Cir. 2002).

The ALJ found that the VA’s determination was (1) incomplete, because the 

VA’s determination did not reflect imaging of the claimant’s head or spine; (2)

inconsistent with examination results showing no motor deficits; and (3) 

inconsistent with the claimant’s only routine and conservative mental health 

treatment as well as notes indicating the claimant’s mental health symptoms were 

at least somewhat controlled with medication. These reasons undermine the VA’s 

disability rating. See Valentine, 574 F.3d at 695. 
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Finally, the ALJ did not err in relying on the testimony of a vocational 

expert (“VE”) at step five of the sequential analysis. The ALJ properly asked the 

VE a hypothetical that captured those functional limitations that the ALJ found 

supported by substantial evidence. See Roberts v. Shalala, 66 F.3d 179, 184 (9th 

Cir. 1995). We reject Rebensdorf’s argument that the ALJ failed to reconcile a 

conflict between the Dictionary of Occupational Titles (“DOT”) and the VE’s 

testimony, because, contrary to Rebensdorf’s argument, not all jobs classified as 

“light work” require six hours of standing or walking per day. SSR 00–4P, 2000 

WL 1898704, at *3 (“The DOT lists maximum requirements of occupations as 

generally performed, not the range of requirements of a particular job as it is 

performed in specific settings. A [vocational expert] . . . may be able to provide 

more specific information about jobs or occupations than the DOT.”). The VE

thus permissibly reduced the number of jobs available to an individual with the 

limitations outlined in the ALJ’s hypothetical, and the ALJ did not err in relying on 

those reduced numbers. Further, for the reasons outlined above, the ALJ did not 

err in omitting additional limitations. See Stubbs-Danielson v. Astrue, 539 F.3d 

1169, 1174–76 (9th Cir. 2008).

AFFIRMED.