                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 27 2013

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



                            FOR THE NINTH CIRCUIT


STEVEN B YELOVICH,                               No. 11-36071

              Plaintiff - Appellant,             D.C. No. 3:10-cv-05867-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 March 8, 2013***
                               Seattle, Washington




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
              Michael J. Astrue, is substituted for his predecessor as Commissioner
of the Social Security Administration. Fed. R. App. P. 43 (c) (2).
       ***
          The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: W. FLETCHER, RAWLINSON, and EBEL**** Circuit Judges.


       Appellant Steven Yelovich (Yelovich) challenges the denial of his claim for

disability benefits.



       1.      Substantial evidence supports the ALJ’s conclusion that Yelovich was

not fully credible. His subjective complaints were inconsistent with his

conservative course of treatment and daily activities. Additionally, Yelovich

admitted to deceiving doctors about his methamphetamine use and presented

inconsistent testimony about his drug abuse. Under the circumstances, the ALJ’s

adverse credibility finding rested on permissible considerations. See Chaudhry v.

Astrue, 688 F.3d 661, 672 (9th Cir. 2012) (noting that when weighing credibility,

an ALJ may consider “(1) ordinary techniques of credibility evaluation, such as the

claimant’s reputation for lying, prior inconsistent statements concerning the

symptoms, and other testimony by the claimant that appears less than candid; (2)

unexplained or inadequately explained failure to seek treatment or to follow a

prescribed course of treatment; and (3) the claimant’s daily activities. . . .”).

        ****
            The Honorable David M. Ebel, Senior Circuit Judge for the U.S.
Court of Appeals for the Tenth Circuit, sitting by designation.

                                            2

                                            2
      2.     Substantial evidence also supports the ALJ’s RFC determination that

Yelovich was capable of sedentary work with some restrictions. The ALJ relied on

medical records indicating that Yelovich possessed normal ambulation with limited

range of motion restrictions, and could be treated conservatively with pain

medication and physical therapy. Psychological evaluations indicated that

Yelovich could perform “simple, repetitive tasks” as set forth in the RFC. The

ALJ presented “specific and legitimate” reasons for rejecting psychological

opinions outlining more severe deficits because Yelovich admitted to concealing

his drug use from those doctors. See Morgan v. Comm’r of Soc. Sec. Admin., 169

F.3d 595, 602-03 (9th Cir. 1999) (explaining that results of psychological testing

may be called into question based on a claimant’s drug use).



      3.     The hypothetical question posed to the vocational expert (VE)

incorporated all of the physical limitations from the RFC. Substantial evidence

supports the ALJ’s exclusion of a “reaching” restriction from the RFC and the

hypothetical because Yelovich’s doctor noted that his shoulder injury “should

improve.” Because the RFC was not defective, the hypothetical question posed to

the VE was proper. See Valentine v. Comm’r of Soc. Sec., 574 F.3d 685, 690 (9th

Cir. 2009) (explaining that the hypothetical question is derived from the RFC).


                                          3
5.    At step five of the disability analysis, the burden shifts to the Social Security

Administration to demonstrate that the claimant is not disabled and that he can

engage in some type of substantial gainful activity “that exists in ‘significant

numbers’ in the national economy . . .” Lockwood v. Comm’r of Soc. Sec. Admin.,

616 F.3d 1068, 1071 (9th Cir. 2010). An ALJ can make this determination by

obtaining the testimony of a VE about the claimant’s vocational capacity. See id.

The parties agree that the VE in this case incorrectly referenced two of the three

occupations he deemed Yelovich capable of performing. The VE’s testimony was

only accurate with respect to the occupation of document preparer. The VE

testified that 900 regional and 42,000 national jobs existed for this occupation.

“We have never set out a bright-line rule for what constitutes a ‘significant

number’ of jobs.” Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012), as

amended. In Beltran, we held that 135 regional and 1,680 national jobs was not a

significant number. See id. at 390. By contrast, we have held that as few as 1,266

regional jobs was a significant number and we have referenced cases finding as

few as 500 jobs significant. See Barker v. Sec’y of Health & Human Servs., 882

F.2d 1474, 1478-79 (9th Cir. 1989), as amended. Because the availability of 900

regional document preparer jobs is similar to numbers we have found “significant”

in the past, the VE’s error is harmless. See Burch v. Barnhart, 400 F.3d 676, 679


                                           4
(9th Cir. 2005) (holding that a disability finding is subject to harmless error

analysis). We do not decide whether the document preparer position is

inconsistent with Yelovich’s RFC limitation of “simple, repetitive tasks.”

Yelovich did not raise this argument with specificity until his reply brief, and has

therefore waived it. See Martinez-Serrano v. I.N.S., 94 F.3d 1256, 1259-60 (9th

Cir. 1996).

      AFFIRMED.




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