                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 18 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MICHAEL MASON,                                   No. 06-35918

              Plaintiff - Appellant,             D.C. No. CV-05-00200-PP

  v.
                                                 MEMORANDUM *
COMMISSIONER OF SOCIAL
SECURITY,

              Defendant - Appellee.



                    Appeal from the United States District Court
                              for the District of Oregon
                     Paul J. Papak, Magistrate Judge, Presiding

                              Submitted May 3, 2010 **
                                 Portland, Oregon

Before: KLEINFELD, BEA and IKUTA, Circuit Judges.

       Michael Mason appeals from the district court’s judgment, which affirmed

the ALJ’s finding that he is not disabled. We affirm.




        *
             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).
         We review de novo a district court’s order upholding the Commissioner’s

denial of benefits. Rollins v. Massanari, 261 F.3d 853, 855 (9th Cir. 2001). We

must affirm the decision of the Commissioner if it was supported by substantial

evidence in the record and applied the correct legal standards. Reddick v. Chater,

157 F.3d 715, 720 (9th Cir. 1998). Substantial evidence is more than a scintilla,

but less than a preponderance. Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir.

1998).




         Substantial evidence in the record supports the ALJ’s determination that

Mason’s testimony was not entirely credible. The ALJ gave specific, clear and

convincing reasons for rejecting Mason’s testimony regarding the severity of his

symptoms, including the medical evidence in the record, Mason’s failure to seek

treatment for his complaints despite informing one of his physicians that he had

access to medical treatment and Mason’s gross under-reporting of his work history

(in both the amount earned and nature of work performed) at the prior hearing

before the ALJ. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). For

example, the ALJ noted that since the prior hearing on Mason’s disability claim,

Mason had asserted a new claim for disability benefits related to an on-the-job

injury he sustained from lifting a ninety-pound object. That injury was sustained


                                           2
during the benefits period presently under review. Mason’s work-related lifting of

ninety pounds is inconsistent with his claim that during the same period he was

unable to lift a bag of groceries.




      Likewise, the ALJ pointed to substantial evidence in the record to support

his determination that the lay witnesses, Trevol Mason and Rhonda Collins, were

not entirely credible. The ALJ specifically identified germane reasons for rejecting

their testimony with respect to Mason’s ability to work, such as the inconsistencies

between their testimony regarding the severity of Mason’s symptoms and Mason’s

activities — his failure to seek treatment and his actual work history.




      Nor did the ALJ err in evaluating Mason’s residual functional capacity. The

ALJ discussed the relevant medical evidence and testimony with respect to

Mason’s claimed impairments and limitations, and relied on the residual functional

capacity findings of Dr. Johnson and Dr. LeBray to reach his conclusions.

Although the ALJ failed to include all of Mason’s mental limitations in Mason’s

residual functional capacity assessment, any error was harmless because substantial

evidence supported the ALJ’s conclusion that any mental limitations did not impair

Mason’s capacity to perform his past relevant work. Batson v. Comm’r of Social


                                          3
Security Admin., 359 F.3d 1190, 1197 (9th Cir. 2004). The ALJ’s conclusion that

Mason was capable of performing his past relevant work was supported by

substantial evidence. The ALJ is not required, as Mason contends, to engage in a

function-by-function analysis under SSR 96-8p. SSR 96-8p requires only that the

ALJ discuss how evidence supports the residual function capacity assessment and

explain how the ALJ resolved material inconsistencies or ambiguities in evidence,

as the ALJ did here. We similarly reject Mason's contention that the ALJ erred by

relying on a medical source opinion from a non-treating physician. Under the

circumstances of this case, where uncontroverted evidence indicated Mason had

not sought any treatment since 1993, reliance on more recent non-treating

physicians' opinions was reasonable.




AFFIRMED.




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