                                                                            FILED
                            NOT FOR PUBLICATION                              DEC 19 2011

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




                            FOR THE NINTH CIRCUIT



RONALD KATT,                                     No. 10-55299

              Plaintiff - Appellant,             D.C. No. 2:08-cv-06796-DSF-SH

  v.
                                                 MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
Social Security Administration,

              Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                     Dale S. Fischer, District Judge, Presiding

                     Argued and Submitted November 10, 2011
                               Pasadena, California

Before: SCHROEDER and REINHARDT, Circuit Judges, and HUDSON, District
Judge.**

       Ronald Katt appeals the district court’s judgment affirming the

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


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Henry E. Hudson, United States District Judge for the
Eastern District of Virginia, sitting by designation.
insurance benefits under Title II of the Social Security Act. Katt alleged disability

due to injuries sustained when he fell through a roof while working as a

self-employed contractor in November, 1989. At Step 2, the Administrative Law

Judge (“ALJ”) found that the evidence failed to establish the existence of a

medically determinable impairment that could reasonably have been expected to

produce Katt’s symptoms prior to December 31, 1989, Katt’s last date of eligibility

for Title II benefits.

       This is Katt’s second appeal to this court. In his first appeal, we remanded

for the ALJ to call a medical expert to provide testimony regarding the onset date

of Katt’s disability. We stated that if the medical testimony was not helpful, the

ALJ should explore lay evidence. Katt v. Astrue, No. 05-55043, 2007 WL 815418

(9th Cir. Mar. 14, 2007). On remand, the ALJ properly followed that order. The

expert reviewed all of the medical records and information in the record, and he

concluded that there was no evidence that Katt had been disabled prior to his last

insured date. Indeed, the record showed that the first diagnosis of any problem

took place after an automobile accident in March, 1990. The ALJ did not abuse his

discretion in concluding, in effect, that lay witness testimony would not be helpful

given the existing state of the record. We also note that at the hearing before the

ALJ Katt represented that he could provide Veterans Administration records


                                          2
showing a disability in the relevant time period, and that the ALJ left the record

open. Katt failed, however, to produce the promised records, and the ALJ's

independent attempt to secure those records was not fruitful. The decision of the

ALJ is thus supported by substantial evidence, as the district court concluded. See

Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006)

(holding that this court will set aside a denial of benefits only if that denial is not

supported by substantial evidence or is based on legal error).

      The Appellee argued that this court lacked jurisdiction because Katt

allegedly filed his notice of appeal past the deadline set by Federal Rule of

Appellate Procedure 4(a). However, we can and do construe Katt’s request for an

extension of time to file a notice of appeal as the functional equivalent of a notice

of appeal. See S.M. v. J.K., 262 F.3d 914, 922 (9th Cir. 2001) (citing Smith v.

Barry, 502 U.S. 244, 248 (1992)).

      AFFIRMED.




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