NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAMELA A. MAESTAS, 

Plaintiff-Appellant, 

 v. 

NANCY A. BERRYHILL, Acting 

Commissioner Social Security, 

Defendant-Appellee.

No. 14-35956 

D.C. No. 3:13-cv-05878-KLS 

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

Karen L. Strombom, Magistrate Judge, Presiding

Submitted June 27, 2017**

Before: NELSON, TROTT, and OWENS, Circuit Judges.

Pamela Maestas appeals the district court’s decision affirming the

Commissioner of Social Security’s denial of Maestas’s application for

supplemental security income under Title XVI of the Social Security Act. We 

 

* 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

JUN 29 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 14-35956 

have jurisdiction under 28 U.S.C. § 1291. We review de novo, Ghanim v. Colvin, 

736 F.3d 1154, 1159 (9th Cir. 2014), and we affirm. 

The ALJ identified specific, clear and convincing reasons that are supported 

by substantial evidence for discounting Maestas’s credibility regarding the 

debilitating effects of her symptoms: (1) there was a lack of supporting objective 

medical evidence for Maestas’s subjective complaints; and (2) there were 

inconsistencies between Maestas’s subjective complaints and her activities of daily 

living. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (finding that lack 

of medical evidence is a factor that the ALJ can consider in credibility analysis); 

Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (listing among proper 

considerations for credibility assessment an engagement in activities of daily living 

that are inconsistent with the alleged symptoms).

The ALJ gave the following specific and legitimate reasons for assigning 

only “little weight” to Dr. Wentworth’s May 2010 opinion regarding Maestas’s 

functional limitations: (1) treatment notes and objective findings were within 

normal limits; and (2) Dr. Wentworth’s opinion was not supported by subsequent 

assessments. The ALJ had specific and legitimate reasons for assigning only “little 

weight” to Dr. Wentworth’s November 2010 opinion: (1) there was no record 

support for Dr. Wentworth’s restricted limitations on Maestas’s lifting, sitting and 

standing when in fact the limitations on lifting are inconsistent with Dr. 
3 14-35956 

Wentworth’s November 2011 assessment that Maestas could lift a maximum of 20 

pounds and lift 10 pounds frequently; and (2) this opinion was inconsistent with 

Maestas’s physical therapy reports showing overall improvement, decreased pain 

and symptoms as well as treatment reports indicating minimal pain or tenderness.

The ALJ gave the following specific and legitimate reasons for assigning Dr. 

Wentworth’s November 2011 opinion only some weight: Maestas’s activities and 

clinical findings did not support this opinion. Lester v. Chater, 81 F.3d 821, 830 

(9th Cir. 1995) (holding that the ALJ must make findings setting forth specific and 

legitimate reasons that are supported by substantial evidence in order to reject the 

contradicted opinion of a treating physician). 

The Commissioner’s determination at Step Two in the sequential evaluation

process is supported by substantial evidence. Meanel v. Apfel, 172 F.3d 1111, 1114 

(9th Cir. 1999). The ALJ properly relied on the absence of record medical evidence 

sufficient to support a determination that Maestas’s depression, anxiety disorder, 

impulse control disorder, obsessive-compulsive disorder, and post-traumatic stress 

disorder, considered singly and in combination, did not cause more than minimal 

limitation in Maestas’s ability to perform basic mental work activities. See Webb 

v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (“[W]e must determine whether the 

ALJ had substantial evidence to find that the medical evidence clearly established 
4 14-35956 

that [the claimant] did not have a medically severe impairment or combination of 

impairments.”).

The ALJ included in the residual functional capacity (“RFC”) assessment all 

the limitations that were supported by, and consistent with, substantial record 

evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). Because the 

functional limitations identified by the ALJ in the RFC for light work with 

limitations, and in the alternative for sedentary work, were supported by the 

medical evidence that the ALJ credited, there was no harmful error at Steps Four or 

Five of the sequential evaluation process. See Magallanes v. Bowen, 881 F.2d 747, 

756-57 (9th Cir. 1989) (explaining that the limitations included in the hypothetical 

propounded to a vocational expert need only be supported by substantial record 

evidence).

The new evidence that the Appeals Council considered does not change that 

fact that substantial evidence supports the ALJ’s decision. Brewes v. Comm’r of 

Soc. Sec. Admin., 682 F.3d 1157, 1159-60, 1162-66 (9th Cir. 2012) (“[W]hen a 

claimant submits evidence for the first time to the Appeals Council, which 

considers that evidence in denying review of the ALJ’s decision, the new evidence 

is part of the administrative record, which the district court must consider in 

determining whether the Commissioner’s decision is supported by substantial 

evidence.”)
5 14-35956 

AFFIRMED.