                               NOT FOR PUBLICATION

                       UNITED STATES COURT OF APPEALS                                 FILED
                                FOR THE NINTH CIRCUIT                                  JUN 07 2011

                                                                                  MOLLY C. DWYER, CLERK
                                                                                    U .S. C O U R T OF APPE ALS

 GARY M. THEBO,                                         No. 10-35097

               Plaintiff - Appellant,                   D.C. No. CV 08-3121-HU

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

               Defendant - Appellee.



                      Appeal from the United States District Court
                               for the District of Oregon
                    Dennis James Hubel, Magistrate Judge, Presiding

                               Submitted March 11, 2011 **
                                    Portland, Oregon

Before: THOMAS and GRABER, Circuit Judges, and SELNA, *** District Judge.

        Gary Thebo appeals the district court’s order affirming the decision of the

administrative law judge (“ALJ”) denying his application for disability benefits.

         *
              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. 34(a)(2)
        ***
                The Honorable James V. Selna, United States District Judge for the Central
District of California, sitting by designation.
We review de novo the district court’s order affirming the ALJ’s denial of benefits.

Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). The decision may be

set aside “only if it is not supported by substantial evidence or is based on legal

error.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Because

the factual and procedural history is familiar to the parties, we need not recount it

here.

        The ALJ did not err by rejecting Thebo’s testimony as not credible. First,

the ALJ gave “specific, clear and convincing reasons” for discounting Thebo’s

testimony. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). The ALJ found

that the weight of the medical evidence conflicted with the disability claim, as did

Thebo’s daily activities, which included taking care of his children, doing laundry,

preparing meals, washing his car, and grocery shopping. The ALJ also noted

testimonial inconsistencies and medical noncompliance. Second, there was

affirmative evidence of malingering. See Carmickle v. Comm’r, Soc. Sec. Admin.,

533 F.3d 1155, 1160 (9th Cir. 2008). Two psychiatrists and a psychologist

examined Thebo and found that his reports “appear[ed] more fictional than

delusional,” suggesting “possible malingering or conversion symptoms, rather than

PTSD.” See Matthews v. Shalala, 10 F.3d 678, 679-80 (9th Cir. 1993).




                                           2
Additionally, an examining neurologist found that Thebo’s muscular weakness was

“‘give away’ in nature.”

       Substantial evidence supports the ALJ’s determination that Thebo did not

suffer from a severe lung impairment. See Andrews v. Shalala, 53 F.3d 1035,

1039 (9th Cir. 1995). Specifically, a chest X-ray and CT scan were normal,

medical reports indicated that Thebo’s airway disease was reversible and that

medication alleviated his symptoms, and a physician reported that he observed no

hemoptysis. Although Thebo points to countervailing medical evidence, much of

the evidence he cites comes from before his alleged onset date and relies in large

part on his subjective complaints, which have been discounted. Where the

evidence supports more than one rational interpretation, the court must defer to the

ALJ’s decision. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th

Cir. 2004); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).

       The ALJ did not err by rejecting the treating doctor’s opinion in favor of the

examining doctors’ opinions because the ALJ gave “specific, legitimate reasons for

disregarding the opinion of the treating physician.”1 Matney v. Sullivan, 981 F.2d

1016, 1019 (9th Cir. 1992). First, the ALJ noted that the treating doctor’s report


       1
        Because the treating doctor’s opinion conflicted with the examining doctors’ findings,
the ALJ did not need to state “clear and convincing” reasons for rejecting the treating
physician’s opinion. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989).

                                               3
appeared to be premised on Thebo’s subjective complaints, and the ALJ had found

that Thebo’s subjective complaints were not credible. See Tonapetyan v. Halter,

242 F.3d 1144, 1149 (9th Cir. 2001). Second, the treating doctor’s report was

completed in 2001 while the examining doctors’ reports were completed in 2002,

which is relevant insofar as it suggests that, even if Thebo suffered from PTSD at

one time, he did not suffer from PTSD through his date last insured. Third, only

one doctor concluded that Thebo suffered from PTSD, whereas several doctors

concluded that Thebo did not suffer from PTSD. See Edlund v. Massanari, 253

F.3d 1152, 1157-58 (9th Cir. 2001). Fourth, the treating doctor’s opinion appeared

to rest on a single meeting with Thebo, undercutting the “rationale for giving

greater weight to a treating physician’s opinion.” Sprague v. Bowen, 812 F.2d

1226, 1230 (9th Cir. 1987). These specific, legitimate reasons were sufficient

grounds for the ALJ’s rejection of the treating doctor’s opinion.

      The ALJ also gave reasons “germane to each witness” for rejecting the lay

witness testimony of Thebo’s wife and mother. See Dodrill v. Shalala, 12 F.3d

915, 919 (9th Cir. 1993). The testimony of Thebo’s wife and mother conflicted

with the ALJ’s findings that Thebo did not suffer from severe PTSD, lung

impairment, or joint pain, and those findings were based on the weight of the

medical evidence. See Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) (“One


                                          4
reason for which an ALJ may discount lay testimony is that it conflicts with

medical evidence.” (citing Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1395

(9th Cir. 1984) (per curiam))). Although the ALJ did not “clearly link” his

rejection of the lay testimony to the conflicts between the lay testimony and the

medical evidence, he summarized the wife’s and mother’s statements and noted

that “both [statements] were considered in arriving at the residual functional

capacity” and that “[c]onsideration [was] given to the medical opinions and lay

reporting.” See id. at 512 (finding that the ALJ “noted arguably germane reasons

for dismissing the [lay] testimony, even if he did not clearly link his determination

to those reasons”). Even if the ALJ’s rejection of the wife’s and mother’s

testimony had been an error, Thebo has not met his burden of showing that the

error was harmful. Shinseki v. Sanders, --- U.S. ----, 129 S. Ct. 1696, 1706 (2009).

Indeed, the record suggests that the error was harmless, id. at 1708, because the

ALJ considered the testimony in determining Thebo’s residual functional capacity.

      The ALJ properly relied on the vocational expert’s response to his

hypothetical. The ALJ’s determination that Thebo did not suffer from severe joint

pain was supported by substantial medical evidence, including imaging studies

showing no arthritic changes, studies based on bone scans indicating “minimal”

degenerative changes, and Thebo’s report that his joint pain was alleviated by


                                          5
medication. Thus, the ALJ’s residual functional capacity determination and the

hypothetical he posed to the vocational expert were supported by the record,

Sample v. Schweiker, 694 F.2d 639, 644 (9th Cir. 1982), and included all of

Thebo’s functional limitations, Thomas, 278 F.3d at 956.

       Finally, in his notice of supplemental authority, Thebo argued that in light of

McLeod v. Astrue, No. 09-35190, 2011 WL 1886355 (9th Cir. May 19, 2011), the

case should be remanded to the ALJ for further development of Thebo’s VA

records. Although McLeod was decided after Thebo submitted his opening brief,

McLeod applied well-established Ninth Circuit case law 2 and a United States

Supreme Court decision that was issued before Thebo filed his opening brief.3 By

not raising the argument before the district court or in his opening brief, Thebo

waived the argument. Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). Even

if he had not waived the argument, the “circumstances of the case” do not “show a

substantial likelihood of prejudice.” See McLeod, 2011 WL 1886355, at *5.

Thebo was represented by counsel throughout the proceedings and, notably, the




       2
         See McLeod, 2011 WL 1886355, at *4 (concluding that the holdings of McCartey v.
Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002), and Tonapetyan, 242 F.3d at 1150, “taken
together establish that when the record suggests a likelihood that there is a VA disability rating,
and does not show what it is, the ALJ has a duty to inquire”).
       3
           See McLeod, 2011 WL 1886355, at *4 (citing Shinseki, 129 S. Ct. 1696).

                                                  6
medical records do not suggest that the VA considered him to be fully disabled at

any time.

      AFFIRMED.




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