                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           MAR 11 2016
                     UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


DUSTIN T. WHITTEN,                               No. 14-35863

               Plaintiff - Appellant,            D.C. No. 3:13-cv-05554-RBL

 v.
                                                 MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,

               Defendant - Appellee.


                    Appeal from the United States District Court
                      for the Western District of Washington
                    Ronald B. Leighton, District Judge, Presiding

                              Submitted March 9, 2016**

Before:        LEAVY, GRABER, and OWENS, Circuit Judges.

      Dustin T. Whitten appeals the district court’s judgment affirming the

Commissioner of Social Security’s denial of his application for supplemental

security income under Title XVI of the Social Security Act. We have jurisdiction


          *
             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).
under 28 U.S.C. § 1291. We review de novo, Molina v. Astrue, 674 F.3d 1104,

1110 (9th Cir. 2012), and we affirm.

      The administrative law judge (ALJ) provided specific and legitimate reasons

for giving little weight to the opinions of examining psychologists Dr. Wingate and

Dr. Parker as to the severity of Whitten’s mental health limitations. The ALJ

reasonably determined that the opinions were contradicted by Whitten’s

longitudinal treatment records, his responses on his mental status examinations, his

activities of daily living, and the opinion of state agency non-examining

psychologist Dr. Robinson, whose conclusion that Whitten was able to understand,

remember, and carry out simple and repetitive instructions was consistent with

other evidence in the record. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th

Cir. 2008) (noting that an “incongruity” between a doctor’s opinion and his

medical records may suffice as a specific and legitimate reason for rejecting that

doctor’s opinion); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (a

contrary opinion of a non-examining medical expert may constitute substantial

evidence when it is consistent with other independent evidence in the record).

      In view of the medical evidence, the ALJ also gave germane reasons for

giving little weight to nurse practitioner Nancy Armstrong’s opinion that Whitten’s

shoulder and back pain, sleep apnea, and fatigue rendered him disabled. See 20


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C.F.R. § 404.1513(a), (d)(1) (nurse practitioner is considered an “other” medical

source); Molina, 674 F.3d at 1111 (holding that an ALJ may discount testimony

from “other sources” if the ALJ provides germane reasons for doing so). The ALJ

also did not err by failing to discuss Whitten’s Global Assessment of Function

(GAF) scores and the clinical notes from Whitten’s consultations with therapist

Victoria Davis, because this evidence was neither probative nor significant in light

of the other evidence in the record. See 20 C.F.R. § 404.1513(a); Vargas v.

Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir. 1998) (a GAF score is merely a rough

estimate of an individual’s psychological, social, or occupational functioning used

to reflect an individual’s need for treatment and not for rating a person’s ability to

work); Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (per curiam)

(ALJ need not discuss evidence that is not significant and probative).

      The ALJ also provided specific, clear, and convincing reasons for rejecting

Whitten’s testimony and the lay witness testimony concerning his mental health

limitations and shoulder and back pain. First, the ALJ’s findings that Whitten’s

mental health symptoms, overall, were unremarkable are supported by inferences

reasonably drawn from the record. See Molina, 674 F.3d at 1111 (“Even when the

evidence is susceptible to more than one rational interpretation, we must uphold

the ALJ’s findings if they are supported by inferences reasonably drawn from the


                                           3
record.”). Second, the ALJ found that Whitten’s testimony regarding the severity

of his symptoms was undermined by his reports about his daily activities. See

Curry v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1991) (concluding that claimant’s

testimony about daily activities may be seen as inconsistent with the presence of a

disabling condition). Finally, the ALJ reasonably determined that Whitten’s poor

work history suggested that his primary barrier to work was his lack of motivation,

rather than a disability. See Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002)

(noting that claimant “had an extremely poor work history and has shown little

propensity to work in her lifetime, which negatively affected her credibility

regarding her inability to work”).

      The ALJ also gave germane reasons for giving little weight to the lay

witness testimony of Whitten’s girlfriend, her children, and Whitten’s roommate

because their statements described essentially the same limitations as Whitten’s

own testimony. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th

Cir. 2009). Whitten’s argument that the ALJ’s step-five finding did not include all

of Whitten’s limitations and that the ALJ’s hypothetical to the vocational expert

was incomplete, simply restates his argument that the ALJ improperly discounted

his testimony and the lay witness testimony in making the residual functional




                                          4
capacity determination. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175-76

(9th Cir. 2008).

      Finally, Whitten fails to raise a colorable claim that the Commissioner

violated his procedural due process rights by failing to include later-submitted

evidence in the administrative record. Here, the evidence submitted to the Appeals

Council post-dated the ALJ’s decision and, therefore, the Commissioner properly

did not include it in the administrative record. See 20 C.F.R. § 404.970(b); Brewes

v. Comm’r Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 2012) (stating that the

administrative record includes evidence submitted to and considered by the

Appeals Council, so long as the evidence relates to the period on or before the

ALJ’s decision). Whitten’s contention that his right to procedural due process was

violated because the Commissioner’s failure to include the new evidence violated

the Hearings, Appeals, and Litigation Law Manual (HALLEX), is unpersuasive.

See Roberts v. Comm’r Soc. Sec. Admin., 644 F.3d 931, 933 (9th Cir. 2011) (per

curiam) (noting that the agency’s HALLEX manual does not “carry the force of

law and is not binding upon the agency” (quoting Parra v. Astrue, 481 F.3d 742,

749 (9th Cir. 2007))).

      AFFIRMED.




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