                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 01 2014

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



                             FOR THE NINTH CIRCUIT


CLIFTON T. HASTINGS,                             No. 12-35761

               Plaintiff - Appellant,            D.C. No. 3:11-cv-01054-SI

  v.
                                                 MEMORANDUM*
COMMISSIONER OF SOCIAL
SECURITY,

               Defendant - Appellee.


                    Appeal from the United States District Court
                             for the District of Oregon
                    Michael H. Simon, District Judge, Presiding

                              Submitted May 27, 2014**

Before:        D. NELSON, LEAVY, and THOMAS, Circuit Judges.

       Clifton T. Hastings appeals pro se the district court’s judgment affirming the

Commissioner of Social Security’s denial of Hastings’s third application for

disability insurance benefits and supplemental security income under Titles II and


          *
             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).
XVI of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.

      The district court did not err in holding that it lacked subject matter

jurisdiction to decide whether the Commissioner failed to meet an obligation to

retain the record of Hastings’s first application for benefits in 2000. The

Commissioner’s retention or loss of records is not a “final decision” subject to

review. See 42 U.S.C. § 405(g); Dexter v. Colvin, 731 F.3d 977, 980 (9th Cir.

2013).

      The district court also lacked jurisdiction to consider whether the

Commissioner set an incorrect onset date when granting Hastings’s subsequent,

fourth application for benefits. The court had jurisdiction only to review the

Commissioner’s final decision denying Hastings’s third application for benefits.

See 42 U.S.C. § 405(g); Dexter, 731 F.3d at 980.

      Hastings contends that the administrative law judge erred by failing to order

IQ testing because such testing might have established a listed impairment. This

contention lacks merit because the record was adequate to allow for proper

evaluation of the evidence. See Mayes v. Massanari, 276 F.3d 453, 459-60 (9th

Cir. 2001). The low average intellectual functionality reported by an examining




                                          2
psychologist would not meet or equal the requirements of the listings. See

Kennedy v. Colvin, 738 F.3d 1172, 1174 (9th Cir. 2013).

      Any error in the ALJ’s partial rejection, without explanation, of the opinion

of a non-examining psychologist was harmless because even if the ALJ had

accepted the psychologist’s findings, Hastings’s impairments would not have met

the listings. See Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012).

      We decline to consider additional issues unsupported by argument in the

opening brief. See Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th

Cir. 2003).

      AFFIRMED.




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