FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MUHAMMAD CHAUDHRY, 

Plaintiff-Appellant, No. 11-35072

v. D.C. No. 

M 2:09-cv-03089-JPH ICHAEL J. ASTRUE, Commissioner,

Social Security Administration, OPINION

Defendant-Appellee. 

Appeal from the United States District Court

for the Eastern District of Washington

James P. Hutton, Magistrate Judge, Presiding

Argued and Submitted

January 12, 2012—Seattle, Washington

Filed August 10, 2012

Before: Diarmuid F. O’Scannlain and Johnnie B. Rawlinson,

Circuit Judges, and Donald W. Molloy, District Judge.*

Opinion by Judge Rawlinson

*The Honorable Donald W. Molloy, United States District Judge for the

District of Montana, sitting by designation. 

9095
COUNSEL

Appellant Muhammad Chaudhry is represented by Jeffrey H.

Baird, Dellert Baird Law Office, Port Orchard, Washington.

Appellee Michael J. Astrue, Commissioner of the Social

Security Administration, is represented by Gerald J. Hill,

Assistant Regional Counsel, Social Security Administration,

Seattle, Washington.

OPINION

RAWLINSON, Circuit Judge:

Appellant Muhammad Chaudhry (Chaudhry) appeals the

district court’s grant of summary judgment in favor of Appellee Michael J. Astrue, Commissioner of the Social Security

Administration (Commissioner). Chaudhry argues that the

Administrative Law Judge (ALJ) erred in finding that Chaudhry is not disabled as defined in the Social Security Act (Act).

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

I. BACKGROUND

Chaudhry was thirty-two years old when he allegedly

became disabled in 2005. Chaudhry had earned a general college degree in his native Pakistan, and performed past relevant work as a fast-food worker, sales clerk, cashier, waiter,

and housekeeper/cleaner. He served in the United States

Army from January 22, 2002, to August 20, 2002, and from

November 15, 2003, to February 25, 2005. Chaudhry injured

his back while serving in the army in 2004. He also suffers

from migraine headaches, narcolepsy, and depression. 

9098 CHAUDHRY v. ASTRUE
A. VA Evaluations

Following Chaudhry’s back injury, several medical providers assessed him in June, 2004. According to Dr. John D.

Werschkul, Chaudhry’s 2004 MRI showed mild protrusion

and no need for surgery. Dr. Werschkul also indicated that

Chaudhry’s neurological exam was negative. Provider1 Beverly Scott assessed Chaudhry with frequent migraine headaches without aura, and noted that Chaudhry’s brain MRI was

within normal limits. Provider Bernard Roth indicated that

there was a very high likelihood that Chaudhry had narcolepsy. Dr. Juliana Ellis-Billingsley observed intermittent

depression. According to Dr. Ellis-Billingsley, the intermittent depression did not diminish Chaudhry’s job performance,

nor did it limit his ability to do well in civilian life, because

he was exceptionally bright and had a good entrepreneurial

spirit. Provider Brian Woebkenberg noted an absence of

objective findings that would support Chaudhry’s complaint

of radicular2 symptoms. Provider Helen Holt assessed Chaudhry with chronic back pain with bilateral radiculopathy3

, and

noted that his gait was steady. 

In July, 2004, Provider James Chambers assessed Chaudhry with degenerative disc disease, but opined that Chaudhry

was not a candidate for surgery. Provider Roger Barstaad

noted in October, 2004, that a radiograph of Chaudhry’s cervical spine showed vertebral body heights and disk spaces

1Because the record is unclear as to the exact status of the various medical care providers, we refer to them as providers unless otherwise indicated. 

2Radicular is defined as relating to a radicle, which in turn is defined

as “[a] rootlet or structure resembling one, as the r. of a vein, a minute

veinlet joining with others to form a vein, or the r. of a nerve, a nerve fiber

that joins others to form a nerve.” Stedman’s Medical Dictionary 1502

(27th ed. 2000) (emphasis omitted). 

3Radiculopathy is a “[d]isorder of the spinal nerve roots.” Id. at 1503.

Bilateral means “[r]elating to, or having, two sides.” Id. at 202. 

CHAUDHRY v. ASTRUE 9099
within normal limits and unremarkable atlanto-axial joints.4

Provider Barstaad noted that the chiropractic clinic would

cancel the rest of Chaudhry’s visits, and “[t]he patient’s reaction to his first visit and his extraordinary high pain complaints coupled with his extraordinarily low ranges of motion

make this a highly ‘interesting’ case. . . .” Provider Barstaad

suspected “phycogenic overlay.”

5

 Provider Vancil McNulty

observed in November, 2004, that Chaudhry exhibited

chronic pain with fear avoidance, oversensitivity to pain, and

L5-S1 disc protrusion. 

Clinic notes indicate that Chaudhry was walking with a

cane in November, 2004. However, Provider Holt noted that

Chaudhry’s gait was steady that month. In addition, Provider

McNulty told Chaudhry that a cane is not indicated for individuals with low back pain. Provider McNulty suspected that

“long term use of the cane will further encourage pain and

disabled behaviors. . . .” A physical therapist also advised

Chaudhry to discontinue use of the cane. Records indicate that

Chaudhry did not follow through with a plan of care after

being seen by neurology providers.

A December, 2004, note indicated that although no issues

besides sinus surgery prevented Chaudhry from deploying to

Iraq, Chaudhry stated that he was unable to function at any

job. At the same time, Chaudhry denied depression. Dr. Marcus Ponce De Leon noted that Chaudhry’s narcolepsy prevented him from driving or performing any duties that require

a high degree of vigilance or prolonged wakefulness. 

4Atlanto-axial is defined as “[p]ertaining to the atlas and the axis; denoting the joint between the first two cervical vertebrae.” Id. at 163. 

5

It appears that the record contains a typographical error, and that Provider Barstaad suspected a psychogenic overlay, which is defined as “[t]he

aggravation of the symptoms and complaints in a case of a physical ailment beyond the usual or what one would expect, due to the emotional

involvement of the patient.” J.E. Schmidt, M.D., Attorneys’ Dictionary of

Medicine and Word Finder Vol. 5, 517 (1999). 

9100 CHAUDHRY v. ASTRUE
The following year, in October, 2005, Chaudhry deferred

examination by Provider Madelyn McKennan, but requested

a prescription for a cane, which McKennan wrote for him.

The next month, Chaudhry appeared in a wheelchair for an

appointment. 

Dr. Raymond Rosenfeld reviewed x-rays of Chaudhry’s

lumbar spine in December, 2005, and found vertebral body

heights and disk spaces within normal limits. Dr. Dianne

Flynn assessed chronic pain syndrome in January, 2007. In

November, 2007, Dr. Flynn examined Chaudhry and noted

that she had a long discussion with him about establishing

goals. 

The Department of Veterans Affairs (DVA) reviewed and

evaluated Chaudhry’s disabling impairments in January,

2007, following Chaudhry’s filing of a Notice of Disagreement with his disability rating.6

 Chaudhry’s sequence of

impairments and corresponding disability ratings was:

migraine headaches 30% disabling; intervertebral disc syndrome of the cervical spine 30% disabling; depression 50%

disabling; intervertebral disc syndrome of the thoracolumbosacral spine 20% disabling; and narcolepsy 20% disabling.

Depression was listed as 30% in the section heading, but the

explanation noted that it had been increased to 50% in 2006.

Chaudhry’s Global Assessment of Functioning (GAF) was 55,

“indicative of moderately severe social and occupational

functioning.” 

B. Examining Consultants

Dr. Marie Ho reviewed Chaudhry’s medical records and

6A Notice of Disagreement is “[a] written communication from a claimant or his or her representative expressing dissatisfaction or disagreement

with an adjudicative determination by the agency of original jurisdiction

and a desire to contest the result . . .” 38 C.F.R. § 20.201. A Notice of Disagreement is required to appeal a DVA decision. See 38 C.F.R. § 20.200.

CHAUDHRY v. ASTRUE 9101
conducted a physical examination on May 10, 2008. Dr. Ho

observed that Chaudhry was in a wheelchair, had severe low

back pain, appeared anxious, and could not perform certain

tests, not necessarily due to lack of effort, but perhaps due to

pain and inhibition. Chaudhry responded slowly to instructions and moved slowly, but was generally cooperative with

testing. Dr. Ho’s testing was limited by Chaudhry’s inability

to stand or walk. Dr. Ho also noted “some inconsistencies

. . .”

Dr. Ho determined that Chaudhry could stand and walk

fewer than 2 hours cumulatively per day and sit longer than

6 hours; lift less than 10 pounds occasionally and frequently,

due to lumbar spine problems; and should not engage in any

crouching, squatting, or kneeling. Dr. Ho also indicated that

Chaudhry’s depression might further limit his ability to function in the workplace. 

Jenifer Schultz, Ph.D., conducted a psychological examination and took Chaudhry’s history. Dr. Schultz’s diagnostic

impressions included somatization disorder;7 depressive disorder not otherwise specified; and dependent personality traits.

According to Dr. Schultz, “[a]lthough [Chaudhry] has many

medical conditions, his physical complaints are in excess of

what would be expected from the history; such as being in a

wheelchair for pain. He fulfills criteria for Somatization Disorder. . . .” Dr. Schultz noted that Chaudhry had no insight

into his condition and felt helpless. Dr. Schultz was of the

view that Chaudhry’s prognosis was poor because Chaudhry

did not believe that he could improve. 

7Somatization disorder is “a mental disorder characterized by presentation of a complicated medical history and of physical symptoms referring

to a variety of organ systems, but without a detectable or known organic

basis.” See Stedman’s Medical Dictionary at 528. 

9102 CHAUDHRY v. ASTRUE
C. Non-Examining Consultants

Dr. Patricia Kraft, a reviewing physician, reviewed Chaudhry’s medical records from January 26, 2006, through May

21, 2008. Dr. Kraft noted non-specific depression and dependent personality traits. Dr. Kraft observed many contradictions in the medical record, such as Chaudhry’s use of a cane

for low back pain. Dr. Kraft rated Chaudhry’s Functional

Limitations as follows: mild restriction of activities of daily

living; mild difficulties in maintaining social functioning;

mild difficulties in maintaining concentration, persistence, or

pace; and no episodes of decompensation. Dr. Kraft acknowledged diagnoses of depression and somatoform disorder, but

considered the diagnoses to be theoretically incompatible,

because somatoform represses depression. Dr. Kraft recognized a 90% disability rating based on Dr. Flynn’s report in

July, 2006. Dr. Kraft rated Chaudhry’s psychological impairments as “nonsevere.” Dr. Kraft wrote that Chaudhry did not

comply with recommended treatment or attend the pain clinic;

repeated mental status examinations yielded normal results;

muscle atrophy in legs was not noted despite Chaudhry’s

claim of having been wheelchair bound for three years; and

there was a lack of medical support for the extent of Chaudhry’s alleged dependency on his wife. 

Dr. Norman Staley reviewed Chaudhry’s medical records

from January 26, 2008, through June 5, 2008. Dr. Staley

found some abnormal disc findings, but was of the view that

Chaudhry had chronic pain syndrome8 and was abusing both

the Veterans Affairs and Social Security systems. According

to Dr. Staley, Chaudhry’s medical record did not support

Chaudhry’s use of a wheelchair or his inability to cooperate

with Dr. Ho’s consultative examination. 

8Chronic pain is “pain that persists after an injury heals . . .” 4 Gale

Encyclopedia of Medicine 2142 (1999). 

CHAUDHRY v. ASTRUE 9103
Chaudhry’s treating physician, Dr. Flynn, examined

Chaudhry in 2008 for complaints of wrist pain. Dr. Flynn

noted “[n]o wrist pain, swelling or stiffness, no wrist joint

pain, no swelling of the wrist joint, and no stiffness of the

wrist joint.” Under the Action Plan section, Dr. Flynn wrote

“Carpal Tunnel Syndrome: Trial of night splints. [Return to

clinic] if unimproved 3-4 weeks. Education.”

D. Social Security Application and ALJ Hearing

Chaudhry alleged that he became unable to work because

of his disability on February 26, 2005. Chaudhry’s claim was

denied on January 24, 2008, and denied on reconsideration on

June 5, 2008. At Chaudhry’s request, the ALJ held a hearing.

At the hearing, Chaudhry testified that he had to spend

much of the day lying down, due to back pain and headaches.

Chaudhry testified that his narcolepsy caused him to fall

asleep approximately twice a day and that his pain medication

made him drowsy. Chaudhry also testified that he used a

wheelchair and a cane to move around, and that he last

walked without a cane in 2003. Chaudhry testified that he was

prescribed the wheelchair in 2004. According to Chaudhry, he

was receiving a veterans’ pension based on the DVA’s determination that he was 100% disabled. 

In response to the ALJ’s hypothetical question and Residual Function Capacity (RFC) assessment, Vocational Expert

Sharon Welter (VE) testified that Chaudhry could perform all

of his past work as well as alternative light exertion jobs

existing in the hundreds of thousands. 

E. ALJ’s Decision

The ALJ applied the five-step sequential evaluation process

for determining whether an individual is disabled under the

Social Security Act. At step one, the ALJ found that Chaudhry had not engaged in substantial gainful activity since Feb9104 CHAUDHRY v. ASTRUE
ruary 26, 2005, his alleged onset date of disability. At step

two, the ALJ found that Chaudhry had the severe impairments

of chronic pain syndrome, degenerative disc disease, headaches, and narcolepsy. 

The ALJ found that Chaudhry’s “medically determinable

mental impairment of depressive disorder does not cause

more than minimal limitation in the claimant’s ability to perform basic mental work activities and is therefore nonsevere.” The ALJ reached this conclusion upon consideration

of “the four broad functional areas set out in the disability

regulations . . .”

In the first functional area, activities of daily living, the

ALJ found mild limitation. Based upon the opinion of Dr.

Kraft and the evaluation of Dr. Schultz, the ALJ found

Chaudhry’s allegations to not be fully credible and concluded

that Chaudhry’s “attitude contributes to his limitations far

more than his actual physical abilities. . . .”

In the second functional area, social functioning, the ALJ

also found mild limitation. The ALJ noted that Chaudhry had

repeatedly declined Dr. Flynn’s recommendation of counseling. According to the ALJ, “it appears that the claimant’s outlook affects his determination as much or more than any

physical or mental impairment.” 

In the third functional area, concentration, persistence, or

pace, the ALJ similarly found mild limitation. The ALJ noted

Dr. Schultz’s finding that Chaudhry’s “concentration and

attention were fair, and that his persistence is affected by the

fact that he generally does not attempt activities. . . .” The

ALJ also noted Dr. Flynn’s unheeded encouragement to

establish goals and see a psychologist, and Dr. Kraft’s finding

of mild limitation based on her review of the record. 

In the fourth functional area, episodes of decompensation,

the ALJ found no indication of limitation. Thus, the ALJ

found the mental impairment to be non-severe. 

CHAUDHRY v. ASTRUE 9105
At step three, the ALJ found that Chaudhry did not have an

impairment or combination of impairments that met or

equaled the criteria of one of the per se disabling impairments

listed in 20 C.F.R. pt. 404, subpt. P, app. 1. The ALJ then

found that Chaudhry had the residual functional capacity to

perform light work, except that Chaudhry was unable to climb

ramps, stairs, ladders, ropes, or scaffolds; he could not stoop,

kneel, crouch, or crawl more than occasionally, but could balance frequently; and he could not tolerate exposure to hazardous machines and unprotected heights. 

The ALJ explained that Chaudhry’s “medically determinable impairments could reasonably be expected to cause the

alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and limiting effects of these

symptoms are not credible to the extent they are inconsistent

with the [ALJ’s] residual functional capacity assessment.” 

With respect to Chaudhry’s claim of depression, the ALJ

noted Dr. Ellis-Billingsley’s diagnosis of depression and her

opinion that it did not impair Chaudhry. The ALJ also noted

that Chaudhry declined to see a psychologist after Dr.

Schultz’s diagnosis of depressive disorder. The ALJ therefore

concluded that Chaudhry’s “failure to seek treatment for

depression places the severity of the symptoms into question.

In addition, no examining source has opined that the claimant

is unable to work or [is] otherwise limited because of his

depression. . . .” According to the ALJ, Chaudhry’s “allegations of limitation lack credibility to the extent they are inconsistent with the assessed RFC.” 

In addressing Chaudhry’s back pain, the ALJ concluded

that “the objective medical evidence does not support the

level of limitation alleged.” The ALJ noted that Chaudhry

used a cane and a wheelchair, even though no medical source

recommended such use. The ALJ noted Dr. Ho’s opinion that

“Chaudhry appeared not to exert adequate effort at times,

although [Dr. Ho] acknowledged that it might be due to pain

9106 CHAUDHRY v. ASTRUE
or inhibition. . . .” The ALJ noted that Dr. Ho’s lower RFC

was “based in part on the claimant’s statements that he could

not walk or stand; no objective evidence supports those statements” and that “Dr. Ho also believed that the claimant’s

wheelchair and single-point cane were prescribed. . . .” 

According to the ALJ, “it appears that [Chaudhry] has not

made any attempt to increase his functionality, instead relying

solely on medication for pain. None of his treating sources

have stated that he requires his wheelchair or that his condition is disabling. . . .” The ALJ also noted that “Dr. Flynn

repeatedly encouraged him to develop goals for better functionality, but stated in September 2008 that he had made no

significant progress in that area. . . .” 

The ALJ gave greater weight to Dr. Staley’s opinion of

Chaudhry’s capabilities than to Dr. Ho’s, because Dr. Ho’s

“opinion regarding [Chaudhry’s] limitation in standing and

walking was based primarily on his self-report of limitations;

he stated he was unable to stand and walk due to back pain

and migraines. Because no objective medical evidence supports his allegation, Dr. Ho’s resulting assessment is likewise

given less credibility. . . .” In general, the ALJ found that

Chaudhry’s “allegations of limitation lack credibility to the

extent they are inconsistent with the RFC . . .” 

The ALJ did not consider Chaudhry’s alleged carpal tunnel

syndrome because the ALJ found that there was no official

diagnosis of carpal tunnel syndrome and the condition had not

lasted more than 12 months. 

The ALJ noted that during the hearing Chaudhry’s representative stated that the DVA assessment was 100%. The ALJ

responded that:

[t]he DVA assessed the claimant’s migraine headaches as 30% disabling, intervertebral disc syndrome

of the cervical spine as 30% disabling, depression as

CHAUDHRY v. ASTRUE 9107
30% disabling, intervertebral disc syndrome of the

lumboscacral spine as 20% disabling, and narcolepsy

as 20% disabling. The DVA determined that the

claimant is not 100% disabled in any of these areas.

Further, the DVA did not consider the cumulative

effect of these impairments as 100% disabling. The

claimant filed a Notice of Disagreement with the

DVA’s action. If the DVA had assessed the claimant

as 100% disabled, as stated by the client’s representative, it is unlikely that the claimant would have

appealed such a decision.

In sum, the ALJ determined that Chaudhry’s impairments

notwithstanding, Chaudhry had the capacity to perform light

work, with specified limitations.

At step four, the ALJ determined that Chaudhry’s residual

functional capacity did not preclude him from performing his

past relevant work as a fast food worker, sales clerk, cashier,

waiter, and housekeeper/cleaner. 

At step five, the ALJ relied on the testimony of the VE to

alternatively find that other jobs existed in significant numbers in the national economy that Chaudhry could perform,

considering his age, education, work experience, and residual

functional capacity, and the additional requirement that he be

able to choose whether to sit or stand. Therefore, the ALJ

found that Chaudhry was not disabled as defined in the Social

Security Act. 

The Appeals Council declined Chaudhry’s request for

administrative review.

F. District Court’s Decision

The assigned magistrate judge granted the Commissioner’s

motion for summary judgment and denied Chaudhry’s motion

for summary judgment. 

9108 CHAUDHRY v. ASTRUE
The magistrate judge found that the ALJ did not err in evaluating the severity of Chaudhry’s psychiatric impairments,

based on the ALJ’s analysis of Dr. Schultz’s and Dr. Kraft’s

opinions, and considering Chaudhry’s lack of credibility. The

magistrate judge also found that the ALJ did not err in giving

less weight to Dr. Ho’s and Dr. Schultz’s opinions when

determining Chaudhry’s RFC. Likewise, the magistrate judge

found no error in the ALJ’s credibility determination in light

of Chaudhry’s inconsistent statements, failure to comply with

medical treatment, and other objective evidence in the record.

The magistrate judge further found that the ALJ did not err in

considering the DVA disability rating, and that the ALJ properly placed greater weight on evidence that contradicted the

rating. 

The district court subsequently entered judgment in favor

of the Commissioner.

II. STANDARD OF REVIEW

We “review de novo a district court’s judgment upholding

the denial of social security benefits. . . .” Berry v. Astrue, 622

F.3d 1228, 1231 (9th Cir. 2010) (citation omitted). We “will

set aside a denial of benefits only if it is not supported by substantial evidence or is based on legal error.” Id. (citation and

internal quotation marks omitted). “[E]ven if the ALJ erred,

we will uphold the decision so long as the error was harmless.” Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068,

1071 (9th Cir. 2010) (citation omitted). 

III. DISCUSSION

A. DVA Disability Rating

Chaudhry argues that, under our holding in McLeod v.

Astrue, 640 F.3d 881 (9th Cir. 2011), as amended, the ALJ

committed reversible error by not obtaining Chaudhry’s disability determination from the DVA. 

CHAUDHRY v. ASTRUE 9109
[1] In McLeod, we held that “although a VA rating of disability does not necessarily compel the SSA to reach an identical result, the ALJ must consider the VA’s finding in

reaching his decision and the ALJ must ordinarily give great

weight to a VA determination of disability. . . .” Id. at 886

(footnote reference omitted). “[W]hen the record suggests a

likelihood that there is a VA disability rating, and does not

show what it is, the ALJ has a duty to inquire. . . .” Id.

[2] One crucial distinction between this case and McLeod

is that the claimant in McLeod was represented by a lay representative. See id. at 885 (“The ALJ must be especially diligent

when the claimant is unrepresented or has only a lay representative, as McLeod did . . . .”) (footnote reference and internal

quotation marks omitted). McLeod’s holding that “[t]he ALJ

must be especially diligent when the claimant is unrepresented . . .” id., does not apply here because Chaudhry was

represented by counsel before the ALJ. As we noted in

McLeod, because the record was “inadequate to allow for

proper evaluation of the evidence . . . the ALJ’s duty to conduct an appropriate inquiry” was triggered. Id. (footnote reference omitted). Here, because the evidence of the VA

disability rating was part of the record, the record was adequate to allow the ALJ to properly evaluate Chaudhry’s claim.

The ALJ’s duty to inquire further did not arise, and unlike in

McLeod, the ALJ’s duty to be especially diligent in the case

of an unrepresented claimant did not apply. Under these circumstances, the ALJ conducted the “full and fair hearing”

required. Id. 

Another distinction is that in McLeod, “[n]o evidence of

[the claimant’s] disability rating was submitted to the Social

Security Administration at any stage of the proceedings, or to

the district court . . . .” Id. at 884. In contrast, Chaudhry submitted the DVA report specifying his disability determination.

Unlike McLeod, where the claimant “ha[d] no idea” whether

he had a DVA disability rating, id., Chaudhry testified before

the ALJ as to his alleged 100% DVA disability rating. How9110 CHAUDHRY v. ASTRUE
ever, the record did not support Chaudhry’s contention. As

the ALJ noted, logic dictates that Chaudhry would not have

challenged the DVA determination, as he did, had the DVA

awarded a 100% disability rating and granted a pension.

Importantly, as we noted in McLeod, “a partial disability rating might cut against rather than in favor of an SSA determination that the individual could not perform remunerative

work of any kind.” Id. at 886. 

Unlike in McLeod, the record in this case was adequate for

the ALJ to consider the DVA’s determination, and the ALJ

properly considered the record evidence of that determination.

In McLeod, the record was unclear as to the existence of a

DVA rating, whereas here the only question was the extent of

the DVA rating. In his opinion, the ALJ directly addressed the

DVA report in the record, Chaudhry’s testimony, and the

medical records describing a DVA disability rating. The ALJ

properly considered the full scope of the record evidence as

to the DVA rating and properly considered the extent of disability suggested by that rating. Cf. id. (explaining that the

VA disability rating must be considered and noting that the

ALJ “did not mention it in her decision”). 

[3] Review of the facts in this case leads us to conclude

that McLeod does not control the outcome and that the ALJ

adequately considered the VA disability rating. 

B. Severity Determination

Chaudhry argues that the ALJ failed to properly evaluate

the severity of Chaudhry’s impairments. Chaudhry specifically challenges the ALJ’s evaluation of Dr. Schultz’s finding

of somatization disorder and non-specific depression.

[4] When evaluating psychiatric impairments such as

somatization disorder and depression, the ALJ must follow a

“special psychiatric review technique” and document his findings and conclusions in his decision. Keyser v. Comm’r Soc.

CHAUDHRY v. ASTRUE 9111
Sec. Admin., 648 F.3d 721, 725 (9th Cir. 2011) (citation omitted) (“Specifically, the written decision must incorporate the

pertinent findings and conclusions based on the technique and

must include a specific finding as to the degree of limitation

in each of the functional areas . . .”) (citations, emphasis, and

internal quotation marks omitted). 

[5] As required by our holding in Keyser, the ALJ documented his application of the psychiatric review technique

and his specific finding as to the degree of limitation in each

functional area. The ALJ explicitly discussed Dr. Schultz’s

statement that Chaudhry’s “physical complaints are in excess

of what would be expected from the history, such as being in

a wheelchair for pain” which formed the basis for Dr.

Schultz’s diagnosis of somatization disorder. The ALJ also

addressed Dr. Schultz’s conclusions regarding Chaudhry’s

dependence on his wife. The ALJ noted his agreement with

Dr. Kraft, who contradicted Dr. Schultz’s diagnosis of somatoform disorder, because, according to Dr. Kraft, that diagnosis is incompatible with a finding of depression. Unlike in

Keyser, the ALJ did not fail to document his analysis of

Chaudhry’s alleged psychiatric impairments. The ALJ’s analysis is supported by the record evidence. 

C. Rejection of Medical Examiners’ Opinions

Chaudhry argues that, in the process of making the RFC

determination, the ALJ provided inadequate reasons for

rejecting the opinions of Dr. Ho and Dr. Schultz. Chaudhry

asserts that Dr. Ho’s opinion was based on her observation of

Chaudhry and her review of Chaudhry’s x-rays and MRI

results. In Chaudhry’s view, Dr. Ho’s opinion carried more

weight than Dr. Staley’s because Dr. Ho saw Chaudhry in

person. Likewise, Chaudhry contends that Dr. Schultz’s opinion carries more weight than Dr. Kraft’s because Dr. Schultz

saw Chaudhry in person and Dr. Kraft did not. 

[6] Because the RFC determination must take into account

the claimant’s testimony regarding his capability, the ALJ

9112 CHAUDHRY v. ASTRUE
must assess that testimony in conjunction with the medical

evidence. “In evaluating the credibility of a claimant’s testimony regarding subjective pain, an ALJ must engage in a

two-step analysis. First, the ALJ must determine whether the

claimant has presented objective medical evidence of an

underlying impairment which could reasonably be expected to

produce the pain or other symptoms alleged. . . .” Vasquez v.

Astrue, 572 F.3d 586, 591 (9th Cir. 2009), as amended (citations and internal quotation marks omitted). Second, “[i]f the

claimant meets the first test and there is no evidence of malingering, the ALJ can only reject the claimant’s testimony about

the severity of the symptoms if [the ALJ] gives specific, clear

and convincing reasons for the rejection.” Id. (citation and

internal quotation marks omitted).

[7] “Where, as here, the record contains conflicting medical evidence, the ALJ is charged with determining credibility

and resolving the conflict. . . .” Benton v. Barnhart, 331 F.3d

1030, 1040 (9th Cir. 2003) (citation omitted). “If a treating or

examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may only reject it by providing specific

and legitimate reasons that are supported by substantial evidence. . . .” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.

2005) (citation omitted). “The ALJ need not accept the opinion of any physician, including a treating physician, if that

opinion is brief, conclusory, and inadequately supported by

clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554

F.3d 1219, 1228 (9th Cir. 2009) (citation and alteration omitted).

[8] When weighing the medical evidence as part of assessing the claimant’s testimony regarding the severity of his

impairments, the ALJ gave Dr. Ho’s opinion less weight than

Dr. Staley’s opinion because the ALJ concluded that Dr. Ho’s

opinion “was based primarily on [Chaudhry’s] self-report of

limitations.” As the ALJ noted, Dr. Ho’s opinion was predicated in part on her erroneous belief that Chaudhry’s wheelchair and cane were prescribed. Chaudhry’s non-prescribed

CHAUDHRY v. ASTRUE 9113
use of a wheelchair and a cane also factored into the ALJ’s

determination that Chaudhry’s subjective expression of his

limitations lacked credibility. The ALJ’s conclusion was supported by the observations of many of the providers who evaluated Chaudhry, including Dr. Ho’s own observation that

Chaudhry appeared not to exert adequate effort during testing.

Dr. Staley’s finding of chronic pain syndrome was echoed by

many of Chaudhry’s other providers or reviewers, including

his treating physician, Dr. Flynn. We therefore conclude that

the ALJ properly relied on medical evidence that undermined

Chaudhry’s subjective assessment of his limitations. 

Because Dr. Ho and Dr. Staley both based their opinions on

Chaudhry’s x-rays and MRI, Chaudhry’s use of a wheelchair

appears to have been the primary difference between their

conflicting opinions. Because the ALJ’s conclusions are supported by the record, and because the ALJ provided specific

and legitimate reasons supported by substantial evidence to

give less weight to Dr. Ho’s opinion, we conclude that the

ALJ did not err in basing the RFC on Dr. Staley’s findings

rather than Dr. Ho’s. 

[9] The ALJ gave Dr. Schultz’s opinion less weight than

Dr. Kraft’s because of Dr. Kraft’s conclusion that Dr.

Schultz’s diagnosis of somatoform disorder was incompatible

with depression. As the ALJ noted, the record reflects that

other providers or reviewers agreed that Chaudhry’s alleged

depression did not constitute an impairment and that Chaudhry repeatedly failed to seek treatment for his depression. We

conclude that the ALJ did not err in basing the RFC on Dr.

Kraft’s opinion rather than Dr. Schultz’s. 

Chaudhry disagrees with the ALJ’s determination that he

lacked credibility. Chaudhry argues that any lack of credibility is explained by the dependency and somatization found by

Dr. Schultz. Likewise, Chaudhry contends that the reviewing

physicians’ finding of malingering is outweighed by the

examining physicians’ opinions. 

9114 CHAUDHRY v. ASTRUE
The ALJ must support his credibility finding “with specific,

clear and convincing reasons.” Taylor v. Comm’r of Soc. Sec.

Admin., 659 F.3d 1228, 1234 (9th Cir. 2011) (citation omitted).9

“The ALJ may consider many factors in weighing a claimant’s credibility, including (1) ordinary techniques of credibility evaluation, such as the claimant’s reputation for lying,

prior inconsistent statements concerning the symptoms, and

other testimony by the claimant that appears less than candid;

(2) unexplained or inadequately explained failure to seek

treatment or to follow a prescribed course of treatment; and

(3) the claimant’s daily activities. If the ALJ’s finding is supported by substantial evidence, the court may not engage in

second-guessing.” Tommasetti v. Astrue, 533 F.3d 1035, 1039

(9th Cir. 2008) (citations and internal quotation marks omitted). “[I]f a claimant complains about disabling pain but fails

to seek treatment, or fails to follow prescribed treatment, for

the pain, an ALJ may use such failure as a basis for finding

the complaint unjustified or exaggerated. . . .” Orn v. Astrue,

495 F.3d 625, 638 (9th Cir. 2007) (citation omitted). 

[10] Chaudhry’s effort to explain away his lack of credibility is unavailing. As discussed, Dr. Schultz’s diagnosis of

somatization disorder was based on Chaudhry’s use of a

wheelchair, which itself demonstrates his failure to follow the

advice of providers who told him he did not need a wheelchair or a cane. It stands to reason that the ALJ’s finding that

Chaudhry was not credible is not undermined by the diagnoses that themselves stemmed from Chaudhry’s lack of credibility. Rather, the ALJ’s credibility finding is clearly,

specifically, and convincingly supported by the record. 

9The Commissioner urges us to conclude that the record demonstrates

malingering and therefore that the ALJ need not provide clear and convincing reasons for rejecting Chaudhry’s testimony. But, the ALJ did not

rely on evidence of malingering to support his credibility determination,

so the “clear and convincing” standard applies to our review of the ALJ’s

determination. See Taylor, 659 F.3d at 1234. 

CHAUDHRY v. ASTRUE 9115
The record also reflects the observations of several providers that Chaudhry’s complaints of depression lacked objective

support and that Chaudhry repeatedly failed to seek treatment

for depression or follow prescribed courses of treatment. See

Tommasetti, 533 F.3d at 1039. This record evidence bolsters

the ALJ’s finding.

D. Carpal Tunnel Syndrome

[11] Chaudhry argues that the ALJ erroneously stated that

there was no formal diagnosis of carpal tunnel syndrome

because Dr. Flynn examined Chaudhry for wrist pain and

made a finding of carpal tunnel syndrome. However, the

ALJ’s finding that there was no official diagnosis of carpal

tunnel syndrome is confirmed by Dr. Flynn’s notes. Furthermore, even if there were an official diagnosis in the record,

there is no evidence, as the ALJ noted, that the condition

would last more than 12 months, as required by 42 U.S.C.

§ 423(d)(1)(A). In sum, the record does not reflect objective

medical evidence of carpal tunnel syndrome, and the ALJ

therefore properly determined Chaudhry’s RFC. 

IV. SUMMARY

We affirm the ALJ’s decision. The ALJ conducted a full

and fair hearing in light of the fact that the record contained

evidence of the VA disability rating and the ALJ discussed

the extent of the disability suggested by that rating in his decision. The ALJ also properly documented his analysis of

Chaudhry’s alleged psychiatric impairments and his analysis

was supported by the record. Likewise, the ALJ’s interpretation of the medical evidence was supported by the record, as

was his credibility determination. 

AFFIRMED.

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