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NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHARON A. PETERSEN, 

Plaintiff-Appellant, 

 v. 

NANCY A. BERRYHILL, Acting 

Commissioner of Social Security,

Defendant-Appellee.

No. 16-35989

D.C. No. 3:15-cv-05837-MAT

MEMORANDUM*

Appeal from the United States District Court for the

Western District of Washington

Mary Alice Theiler, Magistrate Judge, Presiding

Submitted June 15, 2018**

Seattle, Washington

Before: M. SMITH and WATFORD, Circuit Judges, and RAYES,*** 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 Douglas L. Rayes, United States District Judge for the 

District of Arizona, sitting by designation.

FILED

JUN 19 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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Appellant Sharon Petersen appeals from the district court’s order affirming 

the denial of Social Security disability insurance benefits. Petersen applied for 

disability insurance benefits in January 2013, alleging disability beginning October 

10, 2011, due to neck and left shoulder injuries she sustained while working as a 

nursing assistant, weakness in her left hand, post-traumatic stress disorder, and 

depression. Petersen contends that, in denying her application, the administrative 

law judge (“ALJ”) improperly discounted her testimony about her symptoms and 

limitations and erred in weighing the various medical opinions in the record. 

Petersen argues that the ALJ consequently failed to properly assess her residual 

functional capacity (“RFC”) and erred by concluding that Petersen could perform 

other work in the national economy despite her impairments. Lastly, Petersen 

contends that new medical evidence submitted by her to the Appeals Council shows 

that the ALJ’s decision is not supported by substantial evidence. 

We have jurisdiction pursuant to 28 U .S.C. § 1291. We review the district 

court’s order de novo, but consider only those issues raised by the party challenging 

the ALJ’s decision. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); Lewis v. Apfel, 

236 F.3d 503, 517 n.13 (9th Cir. 2001). The ALJ’s disability determination will be 

“upheld unless it contains legal error or is not supported by substantial evidence.” 

Orn, 495 F.3d at 630. We affirm.
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The ALJ provided the requisite specific, clear, and convincing reasons for 

finding Petersen’s symptom testimony “not entirely credible.” Smolen v. Chater, 80 

F.3d 1273, 1281 (9th Cir. 1996) (“[T]he ALJ can reject the claimant’s testimony 

about the severity of her symptoms only by offering specific, clear and convincing 

reasons for doing so.”).

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 The ALJ sufficiently identified inconsistencies between 

Petersen’s testimony and the objective medical evidence. See Rollins v. Massanari, 

261 F.3d 853, 857 (9th Cir. 2001) (“While subjective pain testimony cannot be 

rejected on the sole ground that it is not fully corroborated by objective medical 

evidence, the medical evidence is still a relevant factor in determining the severity 

of the claimant’s pain and its disabling effects.”). The ALJ also properly relied on 

evidence that Petersen gave poor or inconsistent effort on examinations, and of 

inconsistencies between Petersen’s reports to her medical providers and those 

 

1 At the time of the ALJ’s decision, Social Security Ruling (“SSR”) 96-7p, 

1996 WL 374186 (July 2, 1996), governed evaluations of claimant symptom 

testimony. Effective March 16, 2016, however, the Social Security Administration 

rescinded SSR 96-7p and eliminated the term “credibility” in order to “clarify that 

subjective symptom evaluation is not an examination of an individual’s character.” 

SSR 16-3p, 2016 WL 1119029, at *1 (Mar. 16, 2016). Because the prior ruling was 

in effect at the time of the ALJ’s decision, the ALJ was bound to follow it. See 20 

C.F.R. § 402.35(b)(1). Moreover, SSR 16-3p’s changes were stylistic, and the new 

ruling remains consistent with Ninth Circuit precedent existing at the time of the 

ALJ’s decision. See Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017). 

Accordingly, the ALJ’s use of the word “credibility” is not, in and of itself, error, 

both because the ALJ was bound to follow the ruling in effect at the time she 

rendered her decision, and because the new ruling does not alter the pre-existing 

standards in the Ninth Circuit for evaluating a claimant’s symptom testimony.
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providers’ observations. See Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012) 

(noting that ALJ’s rejection of claimant’s symptom testimony was supported by 

evidence that claimant “appeared not to exert adequate effort during testing”). 

Further, the ALJ properly relied on evidence that Petersen’s pain and symptoms 

were controlled with medication and treatment. See Warre v. Comm’r of the Soc. 

Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be 

controlled effectively with medication are not disabling[.]”). 

The ALJ did not err in weighing the various conflicting medical opinions. See 

Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995) (discussing standards for 

weighing competing medical opinions); Tommasetti v. Astrue, 533 F.3d 1035, 1041–

42 (9th Cir. 2008) (“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[.]” 

(quoting Morgan v. Comm’r Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999)); 

Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008) (noting 

that physician’s opinion that claimant could not work for a limited period of time 

was not indicative of “claimant’s long-term functioning”); Osenbrock v. Apfel, 240 

F.3d 1157, 1165 (9th Cir. 2001) (“A treating physician’s most recent medical reports 

are highly probative.”); 20 C.F.R. § 404.1527(c)(4) (“Generally, the more consistent 

a medical opinion is with the record as a whole, the more weight we will give to that 

medical opinion.”). Although Petersen offers an alternative, more favorable 
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interpretation of the competing medical opinion evidence, it is the ALJ’s rational 

interpretation that controls. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 

The ALJ did not err in assessing Petersen’s RFC or in posing hypothetical 

questions to the vocational expert during the administrative hearing. The ALJ’s RFC 

and hypothetical questions “took into account those limitations for which there was 

record support.” Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). Nor was 

the vocational expert’s testimony inconsistent with the Dictionary of Occupational 

Titles (“DOT”). Neither the vocational expert nor the DOT indicated that both hands 

were needed at all times to perform the jobs of house sitter and film touch-up 

inspector, and the surveillance-system monitor position requires no reaching, 

handling, or fingering. See DOT job description for Surveillance-System Monitor, 

379.367-010, 1991 WL 673244 (1991). 

The new medical evidence Petersen submitted to the Appeals Council does 

not affect the ALJ’s disability determination and does not warrant remand because 

the new evidence post-dates the period under review, is not retroactive to that period, 

and therefore would not reasonably affect the ALJ’s decision. Brewes v. Comm’r of 

Soc. Sec. Admin, 682 F.3d 1157, 1162 (9th Cir. 2012) (“The Commissioner’s 

regulations permit claimants to submit new and material evidence to the Appeals 

Council and require the Council to consider that evidence in determining whether to 

review the ALJ’s decision, so long as the evidence relates to the period on or before 
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the ALJ’s decision.”); Bruton v. Massanari, 268 F.3d 824, 827 (9th Cir. 2001) 

(explaining that new evidence is “material” under 42 U.S.C. § 405(g) if it “‘bear[s] 

directly and substantially on the matter in dispute,’ and if there is a ‘reasonabl[e] 

possibility that the new evidence would have changed the outcome of the . . .

determination’” (alterations in original) (quoting Booz v. Sec’y of Health & Human 

Servs., 734 F.2d 1378, 1380 (9th Cir. 1984))). 

AFFIRMED.