113 F3d 1241 Fesler v. Social Security Administration Commissioner

113 F.3d 1241

Darlene FESLER, Plaintiff-Appellant,

No. 96-35456.

United States Court of Appeals, Ninth Circuit.

Submitted May 7, 1997.*
Decided May 9, 1997.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before: BOOCHEVER, BRUNETTI and KOZINSKI, Circuit Judges.

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Darlene Fesler appeals from a decision of the district court that she was not disabled as of December 31, 1989 (the last date on which she qualified for benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq.).


The ALJ, whose decision the district court affirmed, did not, as Fesler contends, "err[ ] by discounting" the testimony of her husband, daughter and grandson. The ALJ explicitly considered the testimony, which is all he must do; it was within his discretion to give it little weight. Nor did he disregard the testimony of Mary Lansing, a marriage and family counselor, who had treated Fesler. He did, however, decline to give Lansing's testimony the weight normally accorded the testimony of a treating physician, see Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.1989), because she is not a physician, osteopath, optometrist, or "licensed or certified psychologist[ ]." 20 C.F.R. § 404.1513(a) (1997).


Substantial evidence supports the ALJ's decision. Fesler suffers from a variety of ailments; she did not, however, demonstrate an "inability to engage in any substantial gainful activity by reason of [a] medically determinable physical or mental impairment" of at least 12 months' duration. 42 U.S.C. § 423(d)(1)(A); see also 20 C.F.R. § 404.1520(b-f) (1997). Evidence of Fesler's depression before 1989 does not change this conclusion; an impairment that appears--but does not reach disabling severity--during the claimant's insured period does not support a disability award. Steimer v. Gardner, 395 F.2d 197 (9th Cir.1968).




The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3