                                                                                FILED
                           NOT FOR PUBLICATION                                  MAR 11 2011

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



                           FOR THE NINTH CIRCUIT

DON D. DAVIS,                                    No. 09-36099

              Plaintiff - Appellant,             D.C. No. 6:08-cv-06354-AA

  v.
                                                 MEMORANDUM*
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,

              Defendant - Appellee.


                   Appeal from the United States District Court
                            for the District of Oregon
                   Ann L. Aiken, Chief District Judge, Presiding

                            Submitted March 8, 2011**
                                Portland, Oregon

Before: D.W. NELSON, THOMAS, and GRABER, Circuit Judges.

       Plaintiff Donald D. Davis appeals from the district court’s decision

dismissing his challenge to the administrative law judge’s ("ALJ") determination

that Plaintiff is not disabled. Reviewing the district court’s decision de novo and


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
the ALJ’s decision for substantial evidence, Lockwood v. Comm’r Soc. Sec.

Admin., 616 F.3d 1068, 1071 (9th Cir. 2010), we affirm.

      1. We do not address Plaintiff’s arguments that the ALJ failed to comply

with the district court’s earlier remand order and that the ALJ violated the law of

the case. Plaintiff failed to raise those arguments before the district court, so they

are waived. See O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1063 n.3 (9th Cir.

2007) (holding that arguments not raised before the district court generally are

waived).

      2. The ALJ provided "clear and convincing reasons" for finding Plaintiff’s

testimony not fully credible. Smolen v. Chater, 80 F.3d 1273, 1283–84 (9th Cir.

1996). As the district court thoroughly explained, substantial evidence supported

the ALJ’s clear and convincing reasons, which include that Plaintiff’s testimony

contradicts the objective medical evidence and that Plaintiff repeatedly failed to

seek treatment or to keep appointments. See id. at 1284 (noting permissible bases

for supporting an adverse credibility determination, including the failure to seek

treatment or to follow treatment plans).

      3. The ALJ provided "specific and legitimate reasons" for giving little

weight to some of the treating doctors’ opinions. Lester v. Chater, 81 F.3d 821,

830 (9th Cir. 1996) (internal quotation marks omitted). In particular, the ALJ


                                           2
found that the doctors’ relevant opinions rested almost entirely on Plaintiff’s

subjective complaints which, as discussed above, the ALJ permissibly rejected.

See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) ("An ALJ may

reject a treating physician's opinion if it is based to a large extent on a claimant's

self-reports that have been properly discounted as incredible." (internal quotation

marks omitted)). Additionally, the ALJ found that some of the opinions

contradicted the doctors’ own treatment notes. See id. (holding that a treating

doctor’s opinion that is "inconsistent with the medical records" is a permissible

reason to reject that opinion).

      4. The ALJ did not fail to consider the testimony of Dr. Rullman. In

context, Dr. Rullman did not testify definitely that Plaintiff’s condition met Listing

1.02; he testified only that, if all the medical evidence were credited, one

reasonably could conclude that Plaintiff’s condition met the listing. But, because

the ALJ permissibly rejected much of the relevant medical evidence, the ALJ

properly concluded that Plaintiff’s condition did not meet Listing 1.02.

      AFFIRMED.




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