                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 08 2012

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




                            FOR THE NINTH CIRCUIT



JACKIE D. RAKES,                                 No. 11-35074

              Plaintiff - Appellant,             D.C. No. 3:09-cv-00821-BR

  v.
                                                 MEMORANDUM *
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,

              Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Oregon
                     Anna J. Brown, District Judge, Presiding

                          Submitted November 5, 2012 **
                                Portland, Oregon

Before: ALARCÓN, McKEOWN, and NGUYEN, Circuit Judges.

       Jackie D. Rakes appeals from the judgment of the district court affirming the

decision of the Commissioner of Social Security that Rakes was not entitled to




        *
             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).
disability insurance benefits and Supplemental Security Income benefits under

Titles II and XVI of the Social Security Act. We have jurisdiction under 28 U.S.C.

§ 1291 and we affirm.

      The Administrative Law Judge’s (ALJ) decision to disregard lay witness

statements and testimony offered in support of Rakes’s claim was supported by

substantial evidence and is therefore proper. See Tonapetyan v. Halter, 242 F.3d

1144, 1148 (9th Cir. 2001). The ALJ rejected the written statements of three

witnesses because they “appear to have been written by the same person” and were

of little or no value because they are “very short, conclusive statements that do not

clearly address or explain the conditions expressed.” The ALJ determined that the

hearing testimony of Rakes’s housemate and former coworker was of

“questionable evidentiary value” because the housemate had not directly observed

Rakes at work, his testimony did not establish a level of impairment, and Rakes

had demonstrated greater functioning by performing 80 hours of community

service work in 2004.

      The ALJ properly determined, based on substantial evidence germane to the

witness, that the physician assistant’s (PA) statement was of little evidentiary

value. See Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010).

The ALJ noted that the PA did not have clinical x-rays or other findings “in


                                           2
response to [Rakes’s] new anecdotal claim of low back pain” and found that the

PA’s request that the claimant be switched to “some sort of suitable employment”

was of no value in assessing Rakes’s exertional and nonexertional capacities. See

Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995) (upholding ALJ’s rejection

of physician testimony that included no specific assessment of claimant’s

functional capacity).

      The ALJ’s residual functional capacity (RFC) determination was also

supported by substantial evidence. The ALJ considered Rakes’s medical records

and found that the intensity and persistence of Rakes’s claimed physical limitations

were contradicted by evidence that Rakes rode a bicycle, had “not been thoroughly

compliant in treatment,” and “exaggerate[d] his symptomology.” The ALJ

credited Dr. Lawrence Lyons’s determination that Rakes’s “intellectual

functioning, memory, abstraction, concentration, persistence, and pace” were

average and noted that Dr. Lyons could not rule out malingering by Rakes. There

was no evidence that Rakes has a learning disorder, save Rakes’s own subjective

claim, and no further examination was warranted. Rakes’s educational history is a

vocational factor and was properly excluded from the ALJ’s RFC assessment. See

20 C.F.R. § 404.1520(g). Because Rakes does not identify any functional

limitations arising from his other claimed impairments, we reject his argument that


                                         3
the RFC improperly failed to account for them. See Valentine v. Comm’r of Soc.

Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009).

      Finally, the vocational expert’s testimony is substantial evidence supporting

the ALJ’s finding that Rakes could perform other jobs existing in significant

numbers in the national economy. See Bayliss v. Barnhart, 427 F.3d 1211, 1218

(9th Cir. 2005). Rakes argues that the hypothetical posed to the vocational expert

was incomplete for the same reasons he challenges the RFC, but this does not

establish error. See Osenbrock v. Apfel, 240 F.3d 1157, 1164-65 (9th Cir. 2001)

(hypothetical was proper where it encompassed the functional restrictions that were

supported by substantial evidence in the record). Rakes also argues that the ALJ

erred in failing to address letters he offered as evidence that certain government

agencies do not document numbers of jobs by Dictionary of Occupational Titles

code. However, Rakes offered no evidence regarding the number of jobs available

in the local and national economies, and the ALJ properly relied on the vocational

expert’s testimony as establishing the number of available jobs.




AFFIRMED




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