                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              MAR 21 2012

                                                                            MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS

FRANKLIN R. LEE,                                  No. 11-35244

              Plaintiff - Appellant,              D.C. No. 1:09-cv-06220-CL

  v.
                                                  MEMORANDUM*
MICHAEL J. ASTRUE,
Commissioner of Social Security,

              Defendant - Appellee.


                  Appeal from the United States District Court
                           for the District of Oregon
                 Owen M. Panner, Senior District Judge, Presiding

                        Argued and Submitted March 5, 2012
                                 Portland, Oregon

Before: W. FLETCHER, FISHER, and BYBEE, Circuit Judges.

       Franklin Lee appeals the decision of the district court affirming the final

determination of the Social Security Commissioner denying his claim for disability

benefits and supplemental security income under Titles II and XVI of the Social

Security Act. Because we find that the Administrative Law Judge’s (“ALJ”)


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
decision was not based on legal error and was supported by substantial evidence,

Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009), we

affirm.

      Lee argues that “the ALJ failed to give clear and convincing reasons for

rejecting [his] testimony.” Where, as here, objective medical evidence establishes

that the claimant suffers from an impairment that could reasonably produce the

complained of symptoms, “an adverse credibility finding must be based on clear

and convincing reasons.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155,

1160 (9th Cir. 2008) (internal quotation marks omitted). In making the credibility

determination, an ALJ may consider the course of treatment to determine whether

allegations of a disability are credible, see Fair v. Bowen, 885 F.2d 597, 603 (9th

Cir. 1989) (finding that an “unexplained, or inadequately explained, failure to seek

treatment or follow a prescribed course of treatment” is a valid basis to reject

claimant testimony), as well as the testimony’s compatibility with the medical

evidence, see Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (holding that

an ALJ may consider “testimony from physicians and third parties concerning the

nature, severity, and effect of the symptoms of which [a] claimant complains” to

evaluate a claimant’s subjective complaints (internal quotation marks omitted)).




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      Finding that Lee’s allegations about “the extent of his limitations . . . are not

supported by the objective evidence to the degree alleged,” the ALJ noted

inconsistencies between Lee’s complaints and medical evidence, as well as the lack

of any ongoing treatment. Because the ALJ cited to several clear and convincing

reasons for finding Lee’s testimony not entirely credible, the ALJ did not err in

discrediting Lee’s subjective complaints.

      Lee next argues that the ALJ erred in failing to include Lee’s personality

disorder as a “severe” impairment at Steps Two and Four of the sequential

analysis. The record demonstrates, however, that the ALJ’s failure to include

Lee’s personality disorder at Step Two—if error at all—was harmless, because the

ALJ discussed Lee’s personality disorder in the context of his residual functional

capacity analysis after finding that Lee’s other mental disabilities were severe.

Where an ALJ fails to consider a disorder at Step Two, but nonetheless accounts

for that disorder at Step Four in the residual functioning capacity analysis, any

alleged error in failing to find the disorder “severe” at Step Two is harmless. See

Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). Lee has therefore failed to

show reversible error in the consideration of his personality disorder.

      Lee next contends that the ALJ improperly discounted the opinion of his

examining psychologist, Dr. Prescott, and instead credited the opinions of Dr.



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Balsamo and Dr. Redner, both of whom also examined Lee. “The ALJ is

responsible for determining credibility and resolving conflicts in medical

testimony.” Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). If a

contradicted medical opinion is rejected, the ALJ must provide “specific and

legitimate reasons supported by substantial evidence in the record” for that

rejection. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (internal quotation

marks omitted).

      The ALJ noted that unlike other examining sources, Dr. Prescott “did not

have the benefit of reviewing the claimant’s record with [sic] history of learning

disorder and cognitive disorder.” Finding that the opinions of Dr. Balsamo and Dr.

Redner exhibited “more comprehensive testing and evaluation of his overall

history and record,” the ALJ relied on their opinions attributing Lee’s impairments

to cognitive disorders, not to the depression cited by Dr. Prescott. The ALJ thus

provided specific and legitimate reasons for discounting the contradicted opinion

of Dr. Prescott.

      Lee also contends that the ALJ erred by failing to acknowledge treating

physician Dr. Phillips’s observation that Lee may suffer from cognitive defects or

mental retardation, and that Lee appeared to have memory problems. The ALJ,

however, did consider Dr. Phillips’s report regarding Lee’s poor memory and gave



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that report little weight, noting that Dr. Phillips “did not record any medical

findings and noted [that Lee] would require a psychological evaluation for possible

cognitive deficits.” The ALJ’s decision to afford the report of Dr. Phillips little

weight is supported by substantial evidence as even Dr. Phillips was hesitant to

make any medical findings about Lee.

      Lee next argues that the ALJ improperly discounted the lay witness

statements of Darlene Reasoner, Lee’s mother-in-law. The ALJ discounted

Reasoner’s statement (identified by the ALJ as “reports provided by . . . third

parties”) because her characterization of Lee’s limitations “is not supported by the

objective evidence,” including the medical evidence. Because the ALJ articulated

a valid reason for rejecting Reasoner’s statement, and that reason is supported by

substantial evidence, the ALJ did not err in discounting Reasoner’s report.

      Finally, Lee argues that if his testimony and medical evidence were credited,

and therefore incorporated into the hypothetical posed to the vocational expert, the

expert would have found that Lee would have been unable to perform work in the

national economy. Because we affirm the ALJ’s consideration of the evidence, we

likewise reject Lee’s challenge to the conclusion provided by the vocational expert.

      In sum, we do not find any legal error or that the evidence was insufficient

to support the ALJ’s determination. Bray, 554 F.3d at 1222. We note, however,



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that Lee has a history of losing jobs after holding them for only a short period of

time. If that pattern continues, and if he were to then file a subsequent application

for benefits, that continued pattern would present a new issue related to Lee’s

claim for disability and would preclude the application of res judicata based on the

present adjudication. See Vasquez v. Astrue, 572 F.3d 586, 597 n.9 (9th Cir. 2009)

(“[A]ll an applicant has to do to preclude the application of res judicata is raise a

new issue in the later proceeding.”).

      AFFIRMED.




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