NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JANET L. SMITH, 

 Plaintiff - Appellant,

 v.

COMMISSIONER OF SOCIAL 

SECURITY ADMINISTRATION, 

 Defendant - Appellee.

No. 13-35441

D.C. No. 6:12-cv-00033-AA

MEMORANDUM*

Appeal from the United States District Court

for the District of Oregon

Ann L. Aiken, Chief District Judge, Presiding

Submitted May 6, 2015**

Portland, Oregon

Before: W. FLETCHER and HURWITZ, Circuit Judges and CURIEL,*** District 

Judge.

 

*

This disposition is not appropriate for publication and is not precedent 

except as provided by 9th Cir. R. 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 Gonzalo P. Curiel, District Judge for the U.S. District 

Court for the Southern District of California, sitting by designation.

FILED

MAY 14 2015

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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Janet Smith appeals from a district court order affirming the Commissioner’s 

denial of her application for Social Security Disability Insurance benefits. She 

argues that the Administrative Law Judge (“ALJ”) erred by rejecting the opinion of 

her primary care physician, finding her not credible, rejecting her husband’s 

testimony, and failing to include all of her limitations in a hypothetical question 

posed to the vocational expert. Alternatively, she seeks remand for the ALJ to 

consider new evidence. We have jurisdiction under 28 U.S.C. § 1291, and affirm.

1. A reviewing court “may at any time order additional evidence to be taken 

before the Commissioner of Social Security, but only upon a showing that there is 

new evidence which is material and that there is good cause for the failure to 

incorporate such evidence into the record in a prior proceeding.” 42 U.S.C. § 

405(g). Such good cause exists if “new information surfaces after the Secretary’s 

final decision and the claimant could not have obtained that evidence at the time of 

the administrative proceeding.” Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 

1985). Smith seeks a remand for the agency to consider a physician’s report 

prepared on March 11, 2011. But the administrative decision did not become final 

until the Appeals Council denied review of the ALJ’s decision on November 10, 

2011. See Lester v. Chater, 81 F.3d 821, 827 (9th Cir. 1995). Smith identifies no 

good cause for her failure to submit the report in the nearly eight months before the 

agency’s final decision.
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2. The ALJ provided “specific and legitimate reasons . . . supported by 

substantial evidence” for disregarding the opinion of Smith’s primary care physician 

that Smith was totally and permanently disabled. Bayliss v. Barnhart, 427 F.3d 

1211, 1216 (9th Cir. 2005). These included Smith’s own testimony about her 

ability to grocery shop, do laundry, unload the dishwasher, make simple meals, take 

her children to school, and help care for her ailing mother. They also included 

records from Smith’s treating rheumatologist, who consistently described her 

rheumatoid arthritis symptoms as “trace,” “modest,” “mild,” and “tolerable.” The 

rheumatologist also noted discrepancies between Smith’s claimed symptoms and his 

objective findings. If medical evidence is “susceptible to more than one rational 

interpretation, we must uphold the ALJ’s findings if,” as here, “they are supported 

by inferences reasonably drawn from the record.” Molina v. Astrue, 674 F.3d 1104, 

1111 (9th Cir. 2012).

3. The ALJ did not err in finding Smith’s testimony about the severity of her 

symptoms not credible. “Where, as here, Claimant has presented evidence of an 

underlying impairment and the government does not argue that there is evidence of 

malingering, we review the ALJ’s rejection of her testimony for specific, clear and 

convincing reasons.” Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014) 

(footnote and internal quotation marks omitted). The ALJ found Smith’s testimony 

was contradicted by (a) her own description of helping with household chores and 
4

care of children and parents, (b) the rheumatologist’s records, (c) records from a 

second treating specialist who described her condition as “unremarkable,” and found 

she was “doing fairly well,” and (d) physical therapy records noting that she could 

“do most of her usual work,” “manage light to medium loads if they are positioned 

conveniently close to her trunk,” and “reach at counter height.” See Molina, 674 

F.3d at 1113.

4. Smith’s claim that the ALJ did not make a separate finding about her 

testimony that she has limited mobility in her hands is unavailing. The ALJ’s 

conclusion that Smith had residual functional capacity for “sedentary work” with

limited handling and fingering is a specific finding regarding Smith’s ability to use 

her hands.

5. The ALJ provided germane reasons for rejecting Smith’s husband’s 

testimony that Smith could not work, including contradictory testimony from both 

the husband and Smith and the rheumatologist’s conclusions that Smith’s symptoms 

improved with medication and weight loss. See Valentine v. Comm’r Soc. Sec. 

Admin., 574 F.3d 685, 694 (9th Cir. 2009); Bayliss, 427 F.3d at 1218.

6. The ALJ did not err in excluding certain limitations claimed by Smith 

from the hypothetical posed to the vocational expert. A hypothetical need only 

include those “limitations that the ALJ found credible and supported by substantial 
5

evidence in the record.” Bayliss, 427 F.3d at 1217. “This is true even where there 

is conflicting medical evidence.” Magallanes v. Bowen, 881 F.2d 747, 757 (9th 

Cir. 1989).

AFFIRMED.