NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 17 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
CHRIST RAY RICHARDSON, No. 13-15167
Plaintiff - Appellant, D.C. No. 1:11-cv-01783-JLT
v.
MEMORANDUM*
COMMISSIONER OF SOCIAL
SECURITY,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Jennifer L. Thurston, Magistrate Judge, Presiding**
Submitted August 18, 2014***
Before: D. Nelson, Leavy, and Thomas, Circuit Judges.
Christ Ray Richardson appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of his application for disability insurance
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
** *
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
benefits and supplemental security income under Titles II and XVI of the Social
Security Act. Richardson contends that the administrative law judge (“ALJ”)
erred by rejecting the opinion of examining psychologist Dr. Hawkins, in favor of
the opinion of non-examining psychiatrist Dr. Luu, concerning his residual
functional mental capacity, and by finding that Richardson was not fully credible
concerning the severity of his mental limitations. We have jurisdiction pursuant to
28 U.S.C. § 1291. We affirm.
This court reviews the district court’s order de novo, and may set aside the
denial of benefits only if it is not supported by substantial evidence or is based on
legal error. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).
The ALJ provided specific and legitimate reasons for giving limited weight
to Dr. Hawkins’s opinion that Richardson had a poor ability to maintain
concentration, persistence, and pace, in favor of the less restrictive opinion of Dr.
Luu, who opined that Richardson had only mild difficulties. See Morgan v.
Comm’r of Soc. Sec. Admin., 169 F.3d 595, 602-03 (9th Cir. 1999). First, the ALJ
appropriately found that Dr. Luu’s opinion was most consistent with the overall
evidence pertaining to Richardson’s mental health symptoms and treatment.
Second, the ALJ properly relied on the fact that Dr. Hawkins himself noted that
Richardson’s estimated IQ scores were lower than one would expect from someone
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with Hawkins’s level of functioning. Third, the ALJ appropriately took into
account the fact that Richardson told Dr. Hawkins that he was in special education
in school, yet other evidence in the record indicated that he was not in special
education classes. Finally, the ALJ properly found that Dr. Hawkins’s report was
internally inconsistent and that his conclusions regarding Richardson’s mental
functioning were not compatible with Richardson’s ability to hold a paying job for
a number of years.
To the extent Richardson argues that the opinions of state agency
non-examining psychologist Alan Goldberg and state agency non-examining
psychiatry resident Mark Harashasky support Dr. Hawkins’s report, Richardson
has waived this argument. See Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir.
2006) (explaining the general rule that this court will not consider an issue raised
for the first time on appeal).
The ALJ provided clear and convincing reasons supported by substantial
evidence in the record for his determination that Richardson’s testimony regarding
the limiting effects of his mental condition lacked credibility. The ALJ reasoned
that Richardson’s testimony on this critical point was without factual support and
marred by inconsistencies. The record supports the ALJ’s credibility
determination, as Richardson did not provide testimony or evidence to substantiate
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how his mental limitations affected his ability to work and stated that he applied
for benefits prematurely, in anticipation of not being able to work at some point in
the future. Richardson’s ability to work part-time after applying for benefits and
suggestion that he was unable to find additional work due to the economic climate
lend further support to the ALJ’s determination. See Molina v. Astrue, 674 F.3d
1104, 1112 (9th Cir. 2012) (stating that an ALJ may consider inconsistencies
between a claimant’s testimony and conduct); Burton v. Massanari, 268 F.3d 824,
828 (9th Cir. 2001) (explaining that an ALJ may consider whether there are other
reasons a claimant is not working).
The ALJ properly posed a hypothetical to the vocational expert containing
all the limitations the ALJ found to be credible and supported by the medical
record, and reasonably determined that Richardson retained the residual functional
capacity to perform jobs that exist in significant numbers in the national economy.
See Thomas, 278 F.3d at 954. The district court’s decision to affirm the ALJ was
supported by substantial evidence and free of legal error.
AFFIRMED.
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