                                                                                      FILED
                               NOT FOR PUBLICATION                                     MAY 07 2013

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




                                FOR THE NINTH CIRCUIT



 ANTHONY BARRIENTEZ,                                    No. 11-35756

                Plaintiff - Appellant,                  D.C. No. 3:10-cv-05642-JLR

   v.
                                                        MEMORANDUM*
 CAROLYN W. COLVIN**,
 Commissioner of Social Security,

                Defendant - Appellee.



                       Appeal from the United States District Court
                         for the Western District of Washington
                       James L. Robart, District Judge, Presiding

                           Argued and Submitted April 11, 2013
                                   Seattle, Washington

Before: TASHIMA and CALLAHAN, Circuit Judges, and COLLINS, District
Judge.***




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

     ** Carolyn W. Colvin is substituted for her predecessor, Michael J. Astrue, as
Commissioner of Social Security pursuant to Fed. R. App. P. 43(c)(2).

        ** The Honorable Raner C. Collins, District Judge for the U.S. District Court for the
District of Arizona, sitting by designation.
         Anthony Barrientez appeals the district court’s decision affirming the

Commissioner of Social Security’s denial of Barrientez’s application for disability

insurance benefits and supplemental security income under Titles II and XVI of the

Social Security Act, 42 U.S.C. §§ 416, 423. We have jurisdiction under 28 U.S.C. §

1291. Because substantial evidence supports the Administrative Law Judge’s (“ALJ”)

decision and the ALJ committed no legal error, we affirm.

         We review de novo the district court’s order upholding a decision of the

Commissioner denying benefits to an applicant. Aukland v. Massanari, 257 F.3d 1033,

1034-35 (9th Cir. 2001). The Commissioner’s decision must be upheld if it is

supported by substantial evidence and is free of legal error. Id. at 1035. Under this

standard, if evidence exists to support more than one rational interpretation, we must

defer to the Commissioner’s decision. Batson v. Comm’r Soc. Sec. Admin., 359 F.3d

1190, 1198 (9th Cir. 2004). Additionally, “[a] decision of the ALJ will not be reversed

for errors that are harmless.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

         First, to the extent the ALJ may have erred by admitting telephonic testimony,

we conclude it was harmless error because there remains substantial evidence in the

record supporting the ALJ’s decision. Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir.

2012).
      Second, while Barrientez may not raise for the first time on appeal his challenge

to the ALJ’s credibility finding, even if this issue could be raised, the ALJ provided

clear and convincing reasons for rejecting Barrientez’s subjective symptom

complaints. Specifically, the ALJ found some evidence of malingering, and noted the

inconsistencies in Barrientez’s cognitive test results and discrepancies between

Barrientez’s reported symptoms and the medical reports. The ALJ also provided

sufficient and germane reasons for rejecting the lay witness testimony, because that

testimony was based on Barrientez’s subjective complaints, which the ALJ found not

credible. Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009).

      Third, the ALJ properly included all limitations that he found credible and

supported by substantial evidence in the residual functional capacity (RFC) finding.

Contrary to Barrientez’s contention, the RFC is not inconsistent with the

recommendations assessed by Dr. Heilbrunn. Dr. Heilbrunn did not recommend any

specific manipulative or reaching limitations, and the ALJ properly incorporated Dr.

Heilbrunn’s recommendation that Barrientez may need postural repositioning by

limiting Barrientez to sitting for one hour intervals, with the option to stand for up to

five minutes as needed during the sitting intervals.

      Finally, the ALJ included all limitations that he found credible and supported

by substantial evidence in determining the vocational expert hypothetical. Bayliss v.


                                           3
Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). Thus, the ALJ properly relied on

vocational evidence at Step 5 of the Social Security Administration evaluation process

to find that Barrientez is capable of performing sedentary unskilled work that exists

in significant numbers in the national economy. Hoopai v. Astrue, 499 F.3d 1071,

1074-75 (9th Cir. 2007).

      Substantial evidence supports the Commissioner’s determination and the ALJ

committed no legal error.

AFFIRMED.




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