FILED
NOT FOR PUBLICATION MAY 14 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BRIAN M. LAGRAND, No. 09-35649
Plaintiff - Appellant, D.C. No. 3:08-cv-00363-HA
v.
MEMORANDUM *
COMMISSIONER SOCIAL
SECURITY ADMINISTRATION,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, Senior District Judge, Presiding
Submitted May 6, 2010 **
Portland, Oregon
Before: KOZINSKI, Chief Judge, BEA and IKUTA, Circuit Judges.
The ALJ based her determination that LaGrand is no longer disabled on
medical evidence and lay testimony that was extensive enough to constitute
“substantial evidence.” Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685,
*
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).
page 2
690 (9th Cir. 2009) (“‘Substantial evidence’ means more than a mere scintilla, but
less than a preponderance.” (internal quotation marks omitted)). The ALJ was
entitled to reject LaGrand’s testimony because there was evidence of malingering,
see Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003),
because his testimony was inconsistent with other evidence, see Thomas v.
Barnhart, 278 F.3d 947, 959 (9th Cir. 2002), and because he was intermittent in
seeking treatment, see Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005).
Because the ALJ gave clear and convincing medical reasons for rejecting
LaGrand’s subjective complaints, and the portions of his sister’s testimony that
were favorable largely reiterated those subjective complaints, any error in failing to
expressly reject the favorable portions of his sister’s testimony was harmless. See
Valentine, 574 F.3d at 694.
Because there was no “[a]mbiguous evidence” or a “finding that the record
is inadequate to allow for proper evaluation of the evidence,” the ALJ was not
required to develop the record further. Tonapetyan v. Halter, 242 F.3d 1144, 1150
(9th Cir. 2001). The ALJ was not required to order further mental evaluations, see
Reed v. Massanari, 270 F.3d 838, 842 (9th Cir. 2001), and LaGrand provides no
authority to support his claim that it was improper for the ALJ to permit testimony
from only one of his two co-habitants.
page 3
We also affirm the ALJ’s determination of LaGrand’s Residual Functional
Capacity because, “[i]n making [her] RFC determination, the ALJ took into
account those limitations for which there was record support” and “[p]reparing a
function-by-function analysis for medical conditions or impairments that the ALJ
found neither credible nor supported by the record is unnecessary.” Bayliss, 427
F.3d at 1217. Similarly, “[t]he hypothetical that the ALJ posed to the [Vocational
Expert] contained all of the limitations that the ALJ found credible and supported
by substantial evidence in the record” and “therefore was proper.” Id. The ALJ
was also entitled to rely on the Dictionary of Occupational Titles to determine that
LaGrand could perform “work in the national and local economies that existed in
significant numbers.” Tommasetti v. Astrue, 533 F.3d 1035, 1042 (9th Cir. 2008).
Finally, we do not consider LaGrand’s claim that the ALJ failed to properly
evaluate whether he met or equaled the listings of impairments because LaGrand
did not present that claim in the district court. See Greger v. Barnhart, 464 F.3d
968, 973 (9th Cir. 2006).
AFFIRMED.