                                                                              FILED
                             NOT FOR PUBLICATION                              JUL 18 2012

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




                             FOR THE NINTH CIRCUIT



ZABIAN R. CROSBY,                                No. 11-16193

               Plaintiff - Appellant,            D.C. No. 1:09-cv-01764-GSA

  v.
                                                 MEMORANDUM *
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,

               Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    Gary S. Austin, Magistrate Judge, Presiding

                               Submitted May 7, 2012 **

Before:        HUG, FARRIS, and LEAVY, Circuit Judges.

       Zabian Crosby appeals pro se a judgment of the district court affirming the

Commissioner of Social Security’s denial of his applications for disability




          *
             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).
insurance 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 affirm.

         We review de novo a district court’s judgment upholding the denial of social

security benefits. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). We

must affirm the denial of benefits unless it is based on legal error or the findings of

fact are not supported by substantial evidence. Valentine v. Comm’r Soc. Sec.

Admin., 574 F.3d 685, 690 (9th Cir. 2009).

         Crosby contends the ALJ improperly discredited his subjective statements

concerning the intensity, persistence, and limiting effects of his impairments. An

ALJ’s credibility determination must be based on specific findings supported by

substantial evidence and clear and convincing reasons. Tommasetti, 533 F.3d at

1039; Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir.

2008).

         The ALJ found Crosby’s subjective statements inconsistent with medical

records showing many of his symptoms are controlled by conservative treatment,

with his work history showing that his longstanding conditions did not preclude

work in the past, with previous statements in which Crosby denied health problems

that he now claims are disabling, with the minimal objective findings suggesting

functional limitations, and with Crosby’s unexplained failure to follow


                                          -2-
recommended treatment that would alleviate his symptoms. These are proper

factors for evaluating credibility, the findings are sufficiently specific to show that

the ALJ’s credibility determination was not arbitrary, and the reasoning is clear

and convincing. We uphold the credibility determination.

      Crosby contends the ALJ improperly discounted the opinions of treating

physicians Steven Kator, M.D., and Roy Raroque, M.D. The ALJ discounted their

opinions in favor of the opinions of examining physicians and reviewing medical

and psychological experts. An ALJ can reject a treating physician’s opinion in

favor of conflicting medical opinions, if the ALJ makes “findings setting forth

specific, legitimate reasons for doing so that are based on substantial evidence in

the record.” Thomas v. Barnhart, 278 F.3d 947, 956-57 (9th Cir. 2002) quoting

Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989).

      The ALJ found Dr. Kator’s opinion unsupported by objective clinical

findings, inconsistent with his own treatment records, and premised significantly

on Crosby’s unreliable subjective statements. The ALJ found Dr. Raroque’s

opinion inconsistent with his own progress notes showing Crosby improved with

treatment, with the findings of other treating sources, and with Crosby’s activities

which showed greater functional capacity than Dr. Raroque suggested. These

findings provide a specific legitimate basis for the ALJ to discount Dr. Kator’s and


                                           -3-
Dr. Raroque’s opinions in favor of other opinions which the ALJ found better

supported by the evidence and more consistent with the record as a whole.

Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001).

      Crosby contends the ALJ failed to give sufficient weight to a rating decision

by the Department of Veterans Affairs which found Crosby 20% disabled due to a

meniscus tear in the knee. An ALJ must give careful consideration to VA findings,

but may reject them for persuasive, valid, specific reasons that are supported by the

record. Valentine, 574 F.3d at 695; McCartey v. Massanari, 298 F.3d 1072, 1076

(9th Cir. 2002). The ALJ discounted the VA rating decision because it was based

significantly on Crosby’s subjective statements and did not address the criteria

used by the Commissioner in determining disability. The ALJ gave greater weight

to the opinions of examining physicians, which addressed the pertinent criteria, viz.

Crosby’s residual functional capacities in specific work-related activities. The ALJ

did not disregard the VA rating decision; he gave it due consideration and

discounted it for persuasive, valid, specific reasons that are supported by the

record.

      Crosby raised two issues for the first time on appeal. He contends for the

first time that the ALJ failed to adequately consider whether his medical condition

is equivalent to Listing 12.04 of the regulatory Listing of Impairments at 20 C.F.R.


                                          -4-
Part 404, Subpart P, Appendix 1. He also challenges the vocational expert’s

testimony for the first time, based on her qualifications and her reliance on the

Dictionary of Occupational Titles. The court will not consider issues raised for the

first time on appeal, except to avoid manifest injustice. Greger v. Barnhart, 464

F.3d 968, 973 (9th Cir. 2006); Meanal v. Apfel, 172 F.3d 1111, 1115 (9th Cir.

1999). There is no manifest injustice here.

      We have reviewed Crosby’s remaining contentions and determine that they

lack merit.

      AFFIRMED.




                                          -5-
