                                                                           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                             NOT FOR PUBLICATION                            MAY 14 2010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.
