                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 11 2015

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



                            FOR THE NINTH CIRCUIT


RICHARD L. HAYNES,                               No. 13-35724

              Plaintiff - Appellant,             D.C. No. 3:12-cv-05271-RAJ

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

              Defendant - Appellee.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Richard A. Jones, District Judge, Presiding

                             Submitted June 5, 2015**
                               Seattle, Washington

Before: O’SCANNLAIN, EBEL***, and McKEOWN, Circuit Judges.




        *
             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).
        ***
            The Honorable David M. Ebel, Senior Circuit Judge for the U.S.
Court of Appeals for the Tenth Circuit, sitting by designation.
      Richard Haynes appeals the district court’s order affirming the ALJ’s denial

of Social Security benefits. We review de novo and may reverse only if the ALJ’s

decision was not supported by substantial evidence or if the ALJ applied the wrong

legal standard. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012).

      The ALJ offered several specific, clear, and convincing reasons for the

negative credibility finding. The ALJ noted inconsistencies in Haynes’s self-

reported ability to engage in tasks that involve concentration, reading, writing,

filling out forms, and communication. See id. at 1112 (noting that inconsistencies

in a claimant’s testimony about the claimant’s abilities properly inform a

credibility determination). The ALJ further noted that Haynes’s testimony about

his cognitive impairments and weakness is not consistent with parts of the medical

record. See 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(3); see also Carmickle v.

Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) (“Contradiction

with the medical record is a sufficient basis for rejecting the claimant’s subjective

testimony.”). Finally, the ALJ appropriately considered “[t]he possibility of

symptom exaggeration in the context of secondary gain” in light of the shifting

bases for Haynes’s complaints. Any other claimed error in the credibility

determination is harmless because the ultimate credibility determination is

supported by substantial evidence. See Carmickle, 533 F.3d at 1162.


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      The ALJ likewise did not err in assessing Haynes’s residual functional

capacity. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (“[T]he

ALJ is the final arbiter with respect to resolving ambiguities in the medical

evidence.”). The ALJ’s conclusion that Haynes does not have functional

limitations as a result of mental impairments is supported by substantial evidence.

Dr. Losee’s overall conclusion, based on examination and objective testing, was

that Haynes does not suffer significant interference in his vocational functioning as

a result of such impairments. See Carmickle, 533 F.3d at 1165 (affirming

interpretation of physician’s recommendation that included a non-imperative

recommendation). Dr. Veltkamp’s report was considered by Dr. Losee, and, in any

event, was less relevant because it preceded the disability onset date. Haynes

identifies no evidence that is probative of a different conclusion with regard to

limitations resulting from mental impairments.

      Haynes does not explain how the evidence of physical ailments that he lists

is “significant probative evidence” of greater limitations than those already

incorporated into the ALJ’s decision. See Flores v. Shalala, 49 F.3d 562, 571 (9th

Cir. 1995) (quoting Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1395 (9th

Cir. 1984) (per curiam)). With regard to Dr. Ogilvie’s opinion, where a treating

physician’s opinion is contradicted by another physician, the ALJ may reject the


                                          3
treating physician’s opinion by providing “specific and legitimate reasons

supported by substantial evidence in the record.” Lester v. Chater, 81 F.3d 821,

830 (9th Cir. 1996) (internal quotation marks omitted). The ALJ validly met this

burden “by setting out a detailed and thorough summary of the facts and

conflicting clinical evidence, stating [his] interpretation thereof, and making

findings.” Tommasetti, 533 F.3d at 1041. The ALJ’s error with regard to the

timing of Dr. Ogilvie’s reports is harmless because the ALJ was entitled to resolve

conflicts with other evidence and because Dr. Ogilvie’s conclusions are further

undermined by the negative credibility determination regarding Haynes’s

subjective complaints. See Batson v. Comm’r of the Soc. Sec. Admin., 359 F.3d

1190, 1195–97 (9th Cir. 2004).

      The ALJ also did not err in the step-two determination of severe

impairments. The temporal lobe abnormality is controlled by medication. See

Berry v. Astrue, 622 F.3d 1228, 1236 (9th Cir. 2010) (affirming the ALJ’s

conclusions regarding the disabling effects of particular impairments). As already

noted, the ALJ reasonably resolved conflicts in the record and credited the opinion

that the learning disorder and attention deficit / hyperactivity disorder did not result

in vocational limitations.




                                           4
      Finally, the failure to take testimony from a vocational expert was not error.

Considering the other reasons given by the ALJ for Haynes’s lack of credibility

and his residual functional capacity, and in the face of the substantial evidence

relied on by the ALJ, Haynes has not persuaded us that the ALJ overlooked any

nonexertional impairments “significant enough to limit further the range of work

permitted by exertional limitations” so as to preclude application of the grids.

Lounsburry v. Barnhart, 468 F.3d 1111, 1115 n.2 (9th Cir. 2006).

      AFFIRMED.




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