                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 14 2012

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




                            FOR THE NINTH CIRCUIT



STEPHANIE DAWN MCTAGGART,                        No. 11-35215

              Plaintiff - Appellant,             D.C. No. 6:09-cv-06184-HO

  v.
                                                 MEMORANDUM *
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,

              Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Oregon
                    Michael R. Hogan, District Judge, Presiding

                              Submitted May 9, 2012 **
                                 Portland, Oregon

Before: TASHIMA, TALLMAN, and IKUTA, Circuit Judges.

       Petitioner Stephanie McTaggart appeals the district court’s order affirming

the Commissioner of Social Security’s final decision to deny McTaggart Social




        *
             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).
Security Disability Insurance and Supplemental Security Income benefits. We

have jurisdiction, 28 U.S.C. § 1291, and we affirm. The facts of the case are

known to the parties; we repeat them only as necessary.

      McTaggart argues that the Administrative Law Judge (ALJ) erred in

discounting the diagnoses and observations made by Dr. James Hylton about

McTaggart’s psychiatric conditions. Because Dr. Hylton was McTaggart’s treating

physician and his opinions were uncontroverted by other medical professionals, the

ALJ was required to make findings setting forth clear and convincing reasons for

rejecting Dr. Hylton’s testimony based on substantial evidence in the record.

Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). The ALJ found that Dr.

Hylton’s report of McTaggart’s psychological conditions was not supported by the

record and that Dr. Hylton appeared to be merely parroting the limitations

McTaggart reported to him.1 See Bayliss v. Barnhart, 427 F.3d 1211, 1216–17

(9th Cir. 2005) (ALJ need not accept a medical opinion not supported by clinical

findings and based solely on subjective complaints). The ALJ’s finding is


      1
       The ALJ also noted that Dr. Hylton was commenting outside his area of
medical expertise in making psychiatric diagnoses. McTaggart argues, and the
Commissioner agrees, that we consider a physician competent to testify on
psychiatric conditions when the conclusions are based on clinical observations.
See Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). The Commissioner
concedes that this was an inappropriate basis for rejecting Dr. Hylton’s testimony,
and we do not rely on that reasoning in our decision.

                                          2
supported by substantial evidence in the record. The ALJ therefore did not err in

discrediting Dr. Hylton’s testimony to the extent that it addressed McTaggart’s

psychological conditions or their severity.

      McTaggart also argues that the ALJ erred by finding that her own testimony

as to the intensity, persistence, and limiting effects of her mental conditions was

not credible. Absent evidence of malingering, “the ALJ can reject the claimant’s

testimony about the severity of her symptoms only by offering specific, clear and

convincing reasons for doing so.” Smolen, 80 F.3d at 1281. The findings must be

“sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily

discredit claimant’s testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir.

2002). The ALJ discredited McTaggart’s testimony because McTaggart’s daily

reported activities were inconsistent with McTaggart’s claimed limitations, see

Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005), and because her allegations

of symptoms were inconsistent with the medical record, see Light v. Soc. Sec.

Admin., 119 F.3d 789, 792 (9th Cir. 1997).2 The ALJ’s findings and reasons are



      2
         The ALJ also relied, in part, on the fact that McTaggart rarely sought
mental health counseling as a ground for her lack of credibility finding. Although
this reliance was erroneous in light of Nguyen v. Chater, 100 F.3d 1462, 1465 (9th
Cir. 1996) (noting that “it is questionable practice to chastise one with a mental
impairment for the exercise of poor judgment in seeking rehabilitation”), that error
was harmless in light of the other, legitimate grounds on which the ALJ relied.

                                           3
supported by substantial evidence in the record. The ALJ therefore properly

discredited McTaggart’s testimony on the severity and persistence of her mental

health impairments.

      McTaggart next argues that the ALJ improperly gave little weight to the lay

testimony of her mother, Janice Vaughan. An ALJ may discount lay testimony by

expressly determining to disregard the testimony and giving reasons germane to

the witness for doing so. Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). The

ALJ discounted Vaughan’s testimony because Vaughan’s impressions were not

fully consistent with the medical and other evidence of record. See id. (“One

reason for which an ALJ may discount lay testimony is that it conflicts with

medical evidence.”). Substantial evidence in the record supports the ALJ’s finding

that Vaughan’s testimony was at odds with the medical evidence and other

evidence in the record. The ALJ therefore did not err in discounting Vaughan’s

testimony.

      McTaggart finally argues that the Commissioner, through the ALJ, did not

satisfy his burden of producing a significant number of jobs that exist in the




                                          4
national economy that McTaggart could perform.3 See 20 C.F.R. § 404.1560(c)(1).

McTaggart argues that the reasoning levels of the jobs relied upon by the

ALJ—classified at levels 2 and 3 by the Dictionary of Occupational Titles—were

inconsistent with her residual functional capacity limiting her to tasks of no more

than three steps. But even if her limitation was inconsistent with a reasoning level

of 3, it was consistent with a reasoning level of 2. See U.S. Dep’t of Labor,

Dictionary of Occupational Titles, app. C (4th ed. 1991), available at 1991 WL

688702 (defining reasoning level 2). The jobs cited by the ALJ with that reasoning

level were sufficient to support the ALJ’s finding that McTaggart could perform

jobs that existed in significant numbers in the national economy and was, therefore,

not disabled.

      AFFIRMED.




      3
        McTaggart also argues that the ALJ inappropriately relied on jobs that were
incompatible with her RFC and that the compatible jobs relied on do not exist in
sufficient numbers in the regional economy to satisfy the Commissioner’s Step
Five burden. However, McTaggart did not raise this issue in the district court and
the district court did not consider it. We generally will not consider an issue raised
for the first time on appeal; because McTaggart has not argued that any of the
exceptions to this general rule apply, or indeed provided any excuse for her failure
to raise the issue in the district court, we consider the issue waived. See Greger v.
Barnhart, 464 F.3d 968, 973 (9th Cir. 2006).

                                          5
