                                                                              FILED
                           NOT FOR PUBLICATION
                                                                               JUN 15 2018
                    UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


JAMES CHERPES,                                   No.    17-35127

              Plaintiff-Appellant,               D.C. No. 3:15-cv-05891-JRC

 v.
                                                 MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

              Defendant-Appellee.


                   Appeal from the United States District Court
                      for the Western District of Washington
                 J. Richard Creatura, Magistrate Judge, Presiding

                             Submitted June 8, 2018**
                               Seattle, Washington

Before: BYBEE and N.R. SMITH, Circuit Judges, and HUCK,*** District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Paul C. Huck, United States District Judge for the U.S.
District Court for Southern Florida, sitting by designation.
      James Cherpes appeals the district court’s decision affirming the

administrative law judge’s (ALJ) decision denying his application for Social

Security Disability benefits. We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we affirm.

      1.     Substantial evidence supports the ALJ’s determination that Cherpes

was not credible. Even if some of the reasons the ALJ gives for discounting the

claimant’s credibility are legally erroneous, the ALJ’s credibility determination

must still be upheld as long as the ALJ gives a valid reason for making an adverse

credibility determination. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155,

1163 (9th Cir. 2008). To assess credibility, the ALJ employed the mandatory two-

step analysis prescribed in Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012).

Here, the ALJ found Cherpes not credible, because two of Cherpes’s examining

physicians indicated Cherpes demonstrated “give-way” weakness during testing,

indicating Cherpes was not giving full effort. An ALJ can make an adverse

credibility determination if the evidence indicates a claimant has failed to give

“maximum or consistent effort” during a physical examination. Thomas v.

Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). Therefore, the ALJ gave at least one

sufficient justification for finding Cherpes not credible.




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      2.     The ALJ did not err in evaluating the medical evidence in the record.1

The ALJ did not err in giving little weight to the restrictions listed in the February

2011 evaluation form, because “when evaluating conflicting medical opinions, an

ALJ need not accept the opinion of a doctor if that opinion is brief, conclusory, and

inadequately supported by clinical findings.” Bayliss v. Barnhart, 427 F.3d 1211,

1216 (9th Cir. 2005). The ALJ did not err in giving little weight to the evaluation

forms completed by Dr. Landino in 2012 and 2013, because they were based on

examinations that occurred more than a year after Cherpes’s date last insured. See

Macri v. Chater, 93 F.3d 540, 545 (9th Cir. 1996). The ALJ did not err in

evaluating Dr. Santoro’s medical opinion; the residual functional capacity (RFC) is

consistent with the limitations identified by Dr. Santoro and the ALJ did not err in

crediting Dr. Santoro’s March 2011 report over his September 2011 report,

because it was closer in time to Cherpes’s date last insured. See id. Because

Cherpes failed to “specifically and distinctly” present argument regarding Dr.


      1
         Cherpes has waived any claim that the magistrate judge erred in
determining he waived certain arguments in his briefing before the lower court.
The magistrate judge determined that Cherpes had raised only certain issues with
specificity in his briefing and concluded that any other arguments were waived.
Cherpes did not challenge that determination in his opening brief on appeal. “[W]e
will not consider any claims that were not actually argued in appellant’s opening
brief.” Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003).
Consequently, we will not examine whether the magistrate judge’s decision
regarding waiver was error. Id.
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Arntz’s medical opinion in his opening brief, any argument regarding the ALJ’s

evaluation of Dr. Arntz’s opinion is waived. Greenwood v. FAA, 28 F.3d 971, 977

(9th Cir. 1994). The ALJ did not err in evaluating the medical opinion of Dr.

Kurland, because the RFC is consistent with Dr. Kurland’s opinion and the ALJ

acknowledged that Dr. Kurland’s opinion related to “use of [Cherpes’s] left arm.”

Finally, the ALJ did not err in evaluating Dr. Kaspar’s medical opinion, because

other evidence in the record contradicted Dr. Kaspar’s opinion, including

Cherpes’s own testimony that he had no problem getting along with the general

public.

      3.     The ALJ erred in failing to discuss the lay opinion of DT North.

However, the error was harmless. In conducting the harmless error inquiry, “we

must consider whether the ALJ’s failure to discuss the [evidence] was

inconsequential to the ultimate nondisability determination in the context of the

record as a whole.” Molina, 674 F.3d at 1122 (quotation marks omitted).

      Here, the ALJ rejected the medical evidence from 2012 and 2013, because it

was based on examinations occurring more than a year after Cherpes’s date last

insured but failed to discuss why it rejected the lay opinion of Mr. North. ER 23-

24. Because Mr. North’s opinion was based on his observations in 2013, the ALJ’s

justification for rejecting the medical evidence from that time period applies with


                                          4
equal force to Mr. North’s lay opinion. Consequently, any error in failing to

discuss Mr. North’s opinion was harmless. See id.

      AFFIRMED.




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