                                                                            FILED
                            NOT FOR PUBLICATION                                 JAN 12 2010

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




                            FOR THE NINTH CIRCUIT



LEVI F. SCHULTZ,                                  No. 08-36047

              Plaintiff - Appellant,              D.C. No. 3:07-cv-06144-MO

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

              Defendant - Appellee.



                   Appeal from the United States District Court
                            for the District of Oregon
                   Michael W. Mosman, District Judge, Presiding

                     Argued and Submitted December 11, 2009
                                Portland, Oregon

Before: FARRIS, D.W. NELSON and BERZON, Circuit Judges.

       Plaintiff-Appellant Levi Schultz appeals the district court’s grant of

summary judgment to the Commissioner in a challenge to the Commissioner’s




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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finding that Schultz is not disabled pursuant to Title XVI of the Social Security

Act. We affirm in part, reverse in part, and remand.1

1.    We affirm the Administrative Law Judge’s (“ALJ”) adverse credibility

finding with respect to Schultz because it is supported by a “clear and convincing

reason[].” Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th

Cir. 2008). The ALJ was entitled to discredit Schultz’s testimony based on its

inconsistency with Schultz’s reported daily activities, such as his ability soon after

back surgery to hike two to three miles. See Tommasetti v. Astrue, 533 F.3d 1035,

1039 (9th Cir. 2008); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1196

(9th Cir. 2004).2

2.    We affirm the ALJ’s decision to give little weight to Dr. Norelle’s opinion

that Schultz would be disabled for one year. The ALJ provided “clear and

convincing reasons supported by substantial evidence in the record” for



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         We do not consider Schultz’s challenge to the ALJ’s conclusion at Step 5
that Schultz could perform other work in the national economy. Schultz waived
this challenge by not setting forth an argument to support it in his opening brief.
See Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir. 1994).
      2
         The ALJ also discredited Schultz’s testimony because of Schultz’s history
of lying about his physical condition. The validity of that reason may depend on
the outcome of a psychological evaluation on remand, discussed infra. However,
as the ALJ’s remaining reason is supported by substantial evidence, the ALJ’s
credibility assessment is legally valid, even if reliance on Schultz’s history of lying
was in error. See Carmickle, 533 F.3d at 1162.
                                            2
discounting Dr. Norelle’s opinion about disability. Holohan v. Massanari, 246

F.3d 1195, 1202–03 (9th Cir. 2001) (internal quotation marks omitted). The ALJ

determined that Dr. Norelle’s opinion was conclusory and unsupported by clinical

findings, a determination supported by the record. See Batson, 359 F.3d at 1195.

The ALJ also properly concluded that Dr. Norelle’s opinion was inconsistent with

the medical evidence available at the time period during which the opinion was

recorded, and was also contradicted by Schultz’s later medical developments. In

the months before Norelle wrote the letter but after Schultz’s back surgery, Schultz

reported to Norelle that he was “doing quite well,” “walking daily,” and had “no

low back pain or lower extremity pain/numbness.” Dr. Norelle noted that

Schultz’s gait was normal. Moreover, the same month that Dr. Norelle wrote her

letter, Schultz reported that he had taken a ten-mile hike and could hike two miles

resulting only in soreness.

3.    We affirm the ALJ’s decision to reject Dr. Micek’s opinion that Schultz

would miss two days of work per month, as the ALJ provided clear and convincing

reasons for so doing. Dr. Micek offered no medical findings or rationale to support

her conclusion, see Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001), so

the ALJ properly inferred that Dr. Micek’s opinion was based on Schultz’s own

reports. Where an applicant’s credibility has been permissibly discounted, an ALJ


                                          3
may disregard a physician’s opinion based on the applicant’s “subjective

complaints and on testing within [the claimant’s] control.” Id.

4.    We hold, however, that the ALJ failed to develop the record with respect to

Schultz’s mental impairments, a duty “triggered . . . when there is ambiguous

evidence or when the record is inadequate to allow for proper evaluation of the

evidence.” Mayes v. Massanari, 276 F.3d 453, 459–60 (9th Cir. 2001). As a

result, the ALJ’s residual functional capacity (“RFC”) analysis did not account for

any limitations posed by Schultz’s recognized mental impairments of possible

conversion reaction, history of delusional state, or depression.

      The state psychologists’ review, on which the ALJ relied for his RFC

analysis, preceded Schultz’s delusional episode and identified only a learning

disorder as the mental impairment under evaluation. Moreover, despite the “broad

latitude” granted the Commissioner concerning whether to order consultative

examinations, Reed v. Massanari, 270 F.3d 838, 842 (9th Cir. 2001) (internal

quotation marks omitted), the ALJ’s rationale for not ordering an

examination—that a “one-shot [psychological] evaluation” would not help the

disability assessment because Schultz “exaggerated his problems to the point of

fabrication”—cannot suffice. The rationale is pure speculation; after the

psychological evaluation is conducted, not before, the ALJ will be in a position to


                                          4
ascertain whether or not it is reliable and helpful. Moreover, that rationale does not

explain why a person whose psychological problems seem to include delusions

could not be evaluated to determine whether he has delusions and whether they

affect his functionality. We therefore reverse the district court’s grant of summary

judgment to the Commissioner and remand for development of the record as to

Schultz’s mental impairments.

                                  CONCLUSION

      We AFFIRM the district court’s conclusion that the ALJ properly

discredited Schultz’s testimony and gave little weight to the opinions of Drs.

Norelle and Micek. We REVERSE the district court’s affirmance of the ALJ’s

refusal to order a psychological consultation. We REMAND to the district court

with instructions to remand to the Commissioner for additional administrative

proceedings consistent with this disposition.

      AFFIRMED in part, REVERSED in part, and REMANDED.




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