                              NOT FOR PUBLICATION                          FILED
                       UNITED STATES COURT OF APPEALS                       FEB 23 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                               FOR THE NINTH CIRCUIT


    DANIEL A. NAULT,                                No. 13-15813

           Plaintiff - Appellant,                   D.C. No. 1:12-cv-00175-HG-KSC

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

           Defendant - Appellee.

                     Appeal from the United States District Court
                              for the District of Hawaii
                   Helen W. Gillmor, Senior District Judge, Presiding

                              Submitted February 17, 2015**
                                   Honolulu Hawaii

Before: TASHIMA, N.R. SMITH, and FRIEDLAND, Circuit Judges.

          Daniel Nault appeals the district court’s judgment affirming the Social

Security Commissioner’s denial of his application for disability insurance benefits.

We review the district court’s decision de novo, Molina v. Astrue, 674 F.3d 1104,


*
 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).
                                           -1-
1110 (9th Cir. 2012), and we affirm.1

      The Administrative Law Judge (“ALJ”) did not err in rejecting testimony of

Nault and his wife regarding the severity of Nault’s impairments. The ALJ gave

specific, clear, and convincing reasons for the rejection of the Naults’ testimony

that Nault was completely disabled. See id. at 1112. The ALJ fairly recounted the

testimony regarding the alleged severity of Nault’s disabilities and contrasted it to

medical records showing that Nault led “an active life with surfing” and

experienced physical symptoms that were “intermittent and positional.”

      Nault is mistaken that the ALJ failed to perform a residual functional

capacity assessment or account for Nault’s need to shift positions while seated.

The ALJ articulated his residual functional capacity assessment over the course of

three single-spaced pages. The ALJ acknowledged Nault’s need to switch

positions when he stated that Nault “was able to manage his symptoms by



1
  The Commissioner has moved to suspend the briefing schedule and to strike
Nault’s opening brief and excerpts of record. The court previously declined to
suspend the briefing schedule and briefing was completed. We now grant in part
and deny in part the remainder of the motion. Because this is a Social Security
review case, the record on appeal is limited to the certified administrative record.
See Brewes v. Comm’r of Soc. Sec., 682 F.3d 1157, 1161 (9th Cir. 2012).
Nonetheless, Nault included in his excerpts of record 850 pages of medical records
from Kaiser Permanente which are not part of the administrative record. Thus,
these records violate Fed. R. App. 10(a) and are ordered stricken. The
Commissioner’s motion also seeks to have the opening brief stricken. The court
views this remedy as unnecessary because it has ignored any reference to the
stricken records. Therefore, this portion of the motion is denied.
                                         -2-
changing position as needed.”

      The ALJ did not err in its consideration of Nault’s Veterans Administration

(“VA”) disability rating. The ALJ acknowledged that Nault had a forty percent

VA disability rating through the date last insured and accurately noted that the

document reflecting that rating did not provide medical information regarding how

it was determined. In light of that, the ALJ appropriately turned to an analysis of

Nault’s VA medical records, which he evaluated thoroughly, and which did not

indicate that Nault was completely disabled.

      Even assuming that the ALJ was required to consider Nault’s workers’

compensation settlement agreement under Social Security Ruling 06-03p, we

conclude that any error in failing to consider the settlement agreement was

harmless. See Molina, 674 F.3d at 1115 (“We have long recognized that harmless

error principles apply in the Social Security Act context.”). Several health

professionals who evaluated Nault in connection with his workers’ compensation

claim noted that he was ready, willing, and able to work, and the ALJ’s

nondisability determination was thoroughly supported by medical evidence.

      The ALJ did not err in refraining from employing the help of a vocational

expert and instead relying on the medical-vocational guidelines to find Nault

capable of working. “[A] vocational expert is required only when there are

significant and sufficiently severe non-exertional limitations not accounted for in


                                        -3-
the grid.” Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007) (internal

quotation marks omitted). Contrary to Nault’s assertion, the ALJ’s residual

functional capacity assessment did not include a finding that Nault had a severe

non-exertional limitation requiring him to alternate between sitting and standing.

Consequently, a vocational expert was not necessary.

      Finally, we need not reach Nault’s contention that the district court erred

regarding the scope of the record. By failing to argue in his opening brief in the

district court that the record should be supplemented, Nault waived any such

contention. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (arguments

not raised by a party in its opening brief are waived).

      AFFIRMED.




                                         -4-
