FILED
NOT FOR PUBLICATION JUN 11 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD L. HAYNES, No. 13-35724
Plaintiff - Appellant, D.C. No. 3:12-cv-05271-RAJ
v.
MEMORANDUM*
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Submitted June 5, 2015**
Seattle, Washington
Before: O’SCANNLAIN, EBEL***, and McKEOWN, Circuit Judges.
*
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 David M. Ebel, Senior Circuit Judge for the U.S.
Court of Appeals for the Tenth Circuit, sitting by designation.
Richard Haynes appeals the district court’s order affirming the ALJ’s denial
of Social Security benefits. We review de novo and may reverse only if the ALJ’s
decision was not supported by substantial evidence or if the ALJ applied the wrong
legal standard. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012).
The ALJ offered several specific, clear, and convincing reasons for the
negative credibility finding. The ALJ noted inconsistencies in Haynes’s self-
reported ability to engage in tasks that involve concentration, reading, writing,
filling out forms, and communication. See id. at 1112 (noting that inconsistencies
in a claimant’s testimony about the claimant’s abilities properly inform a
credibility determination). The ALJ further noted that Haynes’s testimony about
his cognitive impairments and weakness is not consistent with parts of the medical
record. See 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(3); see also Carmickle v.
Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) (“Contradiction
with the medical record is a sufficient basis for rejecting the claimant’s subjective
testimony.”). Finally, the ALJ appropriately considered “[t]he possibility of
symptom exaggeration in the context of secondary gain” in light of the shifting
bases for Haynes’s complaints. Any other claimed error in the credibility
determination is harmless because the ultimate credibility determination is
supported by substantial evidence. See Carmickle, 533 F.3d at 1162.
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The ALJ likewise did not err in assessing Haynes’s residual functional
capacity. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (“[T]he
ALJ is the final arbiter with respect to resolving ambiguities in the medical
evidence.”). The ALJ’s conclusion that Haynes does not have functional
limitations as a result of mental impairments is supported by substantial evidence.
Dr. Losee’s overall conclusion, based on examination and objective testing, was
that Haynes does not suffer significant interference in his vocational functioning as
a result of such impairments. See Carmickle, 533 F.3d at 1165 (affirming
interpretation of physician’s recommendation that included a non-imperative
recommendation). Dr. Veltkamp’s report was considered by Dr. Losee, and, in any
event, was less relevant because it preceded the disability onset date. Haynes
identifies no evidence that is probative of a different conclusion with regard to
limitations resulting from mental impairments.
Haynes does not explain how the evidence of physical ailments that he lists
is “significant probative evidence” of greater limitations than those already
incorporated into the ALJ’s decision. See Flores v. Shalala, 49 F.3d 562, 571 (9th
Cir. 1995) (quoting Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1395 (9th
Cir. 1984) (per curiam)). With regard to Dr. Ogilvie’s opinion, where a treating
physician’s opinion is contradicted by another physician, the ALJ may reject the
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treating physician’s opinion by providing “specific and legitimate reasons
supported by substantial evidence in the record.” Lester v. Chater, 81 F.3d 821,
830 (9th Cir. 1996) (internal quotation marks omitted). The ALJ validly met this
burden “by setting out a detailed and thorough summary of the facts and
conflicting clinical evidence, stating [his] interpretation thereof, and making
findings.” Tommasetti, 533 F.3d at 1041. The ALJ’s error with regard to the
timing of Dr. Ogilvie’s reports is harmless because the ALJ was entitled to resolve
conflicts with other evidence and because Dr. Ogilvie’s conclusions are further
undermined by the negative credibility determination regarding Haynes’s
subjective complaints. See Batson v. Comm’r of the Soc. Sec. Admin., 359 F.3d
1190, 1195–97 (9th Cir. 2004).
The ALJ also did not err in the step-two determination of severe
impairments. The temporal lobe abnormality is controlled by medication. See
Berry v. Astrue, 622 F.3d 1228, 1236 (9th Cir. 2010) (affirming the ALJ’s
conclusions regarding the disabling effects of particular impairments). As already
noted, the ALJ reasonably resolved conflicts in the record and credited the opinion
that the learning disorder and attention deficit / hyperactivity disorder did not result
in vocational limitations.
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Finally, the failure to take testimony from a vocational expert was not error.
Considering the other reasons given by the ALJ for Haynes’s lack of credibility
and his residual functional capacity, and in the face of the substantial evidence
relied on by the ALJ, Haynes has not persuaded us that the ALJ overlooked any
nonexertional impairments “significant enough to limit further the range of work
permitted by exertional limitations” so as to preclude application of the grids.
Lounsburry v. Barnhart, 468 F.3d 1111, 1115 n.2 (9th Cir. 2006).
AFFIRMED.
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