                              NOT FOR PUBLICATION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


                                          3
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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