                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

LEONARD R. GREGER,                        
              Plaintiff-Appellant,               No. 04-35891
               v.
                                                  D.C. No.
                                               CV-04-0023-MWL
JO ANNE B. BARNHART,
Commissioner of Social Security,                  OPINION
             Defendant-Appellee.
                                          
        Appeal from the United States District Court
           for the Eastern District of Washington
       Michael W. Leavitt, Magistrate Judge, Presiding

                    Argued and Submitted
              June 6, 2006—Seattle, Washington

                    Filed September 20, 2006

   Before: Warren J. Ferguson and Consuelo M. Callahan,
    Circuit Judges, and Susan R. Bolton,* District Judge.

                   Opinion by Judge Bolton;
                   Dissent by Judge Ferguson




  *The Honorable Susan R. Bolton, United States District Judge for the
District of Arizona, sitting by designation.

                               11749
11752                GREGER v. BARNHART


                         COUNSEL

Plaintiff-appellant was represented by Rebecca M. Coufal of
Spokane, Washington.

Defendant-appellee was represented by Robert McCallum,
Assistant Attorney General, James A. McDevitt, United States
Attorney, Pamela J. Derusha, Assistant United States Attor-
ney, Lucille Gonzales Meis, Regional Chief Counsel, and
Franco L. Becia, Assistant Regional Counsel Social Security
Administration, of Seattle, Washington.


                          OPINION

BOLTON, District Judge:

  Leonard R. Greger appeals the district court’s order affirm-
ing the Commissioner of Social Security’s (“Commissioner”)
denial of social security disability insurance benefits under
Title II of the Social Security Act, 42 U.S.C. §§ 401-33. We
have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

        FACTS AND PROCEDURAL HISTORY

   Greger applied for social security disability insurance bene-
fits on January 30, 2001. He alleged that he became disabled
                           GREGER v. BARNHART                         11753
on June 25, 1998 due to triple bypass surgery, high blood
pressure, a defective aorta, fibromyalgia, bad knees, and
stomach problems. Greger’s disability insurance lapsed on
December 31, 1998, and so he must establish that he was dis-
abled and unable to work from the alleged onset date, June
25, 1998, to December 31, 1998 (the “relevant period”).

   Greger was 49 years old, with a ninth-grade education,
when his insured status expired. At his hearing on October 8,
2002, Greger testified that he worked as a truck driver until
1993 and was self-employed after that, doing miscellaneous
carpentry-type jobs until shortly before he had open heart sur-
gery in June 1998. Greger also had surgery in July 1998 to
remove a perianal abscess with followup surgery in Novem-
ber 1998. Greger testified that, during the relevant period, he
experienced pain when sitting or standing for more than 30
minutes at a time, or walking more than half a block, short-
ness of breath with activity such as walking, and fatigue and
shortness of breath caused by his heart medication, Atenolol.
He said that he had suffered from carpal tunnel syndrome for
five years. He also testified that the Veterans Administration
(“VA”) diagnosed him with post traumatic stress disorder
(“PTSD”) in August 1998, with a disability rating of 30%.1
Also, stomach surgery in 1976 left him with “dumping syn-
drome,” a difficulty in controlling one’s bowels.

   The administrative law judge (“ALJ”) went through the
five-step sequential evaluation process as required by 20
C.F.R. § 404.1520.22 At step one, the ALJ determined that
  1
     A May 1, 2000, VA compensation and pension exam report recognized
that Greger was “currently 30% service-connected for PTSD and 20%
service-connected for postoperative stomach injury.” The May 2000 report
referenced Greger’s previous compensation and pension exam, conducted
in September of 1998, although the earlier report is not in the record.
   2
     The Ninth Circuit outlined this five-step process in Lester v. Chater,
81 F.3d 821, 828 n.5 (9th Cir. 1995):
      Step one: Is the claimant engaging in substantial gainful activity?
      If so, the claimant is found not disabled. If not, proceed to step
      two.
11754                   GREGER v. BARNHART
Greger was not performing substantial gainful activity. At
steps two and three, the ALJ found that Greger suffered from
severe cardiac, gastrointestinal and musculoskeletal impair-
ments, as well as gout and hypertension, but that his condition
did not meet or equal a listed impairment. The ALJ also found
that Greger’s PTSD and other psychological problems did not
meet the criteria for a severe mental impairment during the
relevant period. At steps four and five, the ALJ found that
Greger’s problems prevented him from doing his past relevant
work as a truck driver and carpenter, but that he retained the
residual functional capacity (“RFC”) during the relevant
period to perform other work at a light level of exertion.
Accordingly, the ALJ found that Greger was not disabled.

   Greger appealed the ALJ’s decision to the district court,
and the magistrate judge entered judgment for the Commis-
sioner. On appeal to this court, Greger advances the same
issues he raised in the court below: that substantial evidence
does not support the ALJ’s findings that Greger and his for-
mer girlfriend, Lois Shields, are not credible and that the
ALJ’s RFC analysis was erroneous because it did not include
all of Greger’s claimed limitations. Greger also raises two
new issues that he did not raise in the district court: that the
ALJ erred (1) by concluding that his psychological problems

   Step two: Does the claimant have a ‘severe’ impairment? If so,
   proceed to step three. If not, then a finding of not disabled is
   appropriate.
   Step three: Does the claimant’s impairment or combination of
   impairments meet or equal an impairment listed in 20 C.F.R., Pt.
   404, Subpt. P, App. 1? If so, the claimant is automatically deter-
   mined disabled. If not, proceed to step four.
   Step four: Is the claimant capable of performing his past work?
   If so, the claimant is not disabled. If not, proceed to step five.
   Step five: Does the claimant have the residual functional capacity
   to perform any other work? If so, the claimant is not disabled. If
   not, the claimant is disabled.
                      GREGER v. BARNHART                   11755
were not severe when the VA had rated him with a 30% men-
tal disability; and (2) by not ordering a consultative psycho-
logical exam in order to fully develop the record.

                 STANDARD OF REVIEW

  We review de novo a district court’s order upholding a
denial of social security disability benefits. Flaten v. Sec’y of
Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995).
This review is limited, however, and “we may set aside a
denial of benefits only if it is not supported by substantial evi-
dence or if it is based on legal error.” Id. (citation omitted).

                        DISCUSSION

                              I.

  Greger argues that the ALJ erred in finding him not credi-
ble and rejecting his testimony regarding his limitations.

   To reject Greger’s subjective complaints, the ALJ “must
provide ‘specific, cogent reasons for the disbelief.’ ” Lester,
81 F.3d at 834 (quoting Rashad v. Sullivan, 903 F.2d 1229,
1231 (9th Cir. 1990)). In the absence of evidence that Greger
is malingering, the ALJ’s reasons for rejecting his testimony
“must be clear and convincing.” Swenson v. Sullivan, 876
F.2d 683, 687 (9th Cir. 1989). When an ALJ “finds that a
claimant’s testimony relating to the intensity of his pain and
other limitations is unreliable, the ALJ must make a credibil-
ity determination citing the reasons why the testimony is
unpersuasive.” Morgan v. Comm’r of Soc. Sec. Admin., 169
F.3d 595, 599 (9th Cir. 1999) (citing Bunnell v. Sullivan, 947
F.2d 341 (9th Cir. 1991)). In making a credibility determina-
tion, the ALJ “must specifically identify what testimony is
credible and what testimony undermines the claimant’s com-
plaints[.] In this regard, questions of credibility and resolu-
tions of conflicts in the testimony are functions solely of the
Secretary.” Id. (citations omitted).
11756                GREGER v. BARNHART
   [1] The ALJ provided clear and convincing reasons for
rejecting Greger’s testimony and gave a detailed written opin-
ion summarizing the specific statements by Greger that were
not credible and the evidence that undermined Greger’s com-
plaints. During the relevant six-month period and into 1999,
Greger failed to report any shortness of breath or chest pain;
there was no evidence that Greger participated in a planned
cardiac rehabilitation program; and he never reported prob-
lems related to carpal tunnel syndrome. Moreover, Greger
told the VA in 2000 that he did carpentry work “under the
table” through 1999, well after his date last insured. The ALJ
noted evidence that after his surgery Greger was “active with
yard work, work around the house, and that he was able to
continue his past work activities as a contractor.”

                             II.

  Likewise, the ALJ did not find Shields credible and so dis-
regarded her affidavit which attested to Greger’s fatigue and
shortness of breath following his surgery and to pain and
numbness in his hands.

   [2] While an ALJ must take into account lay witness testi-
mony about a claimant’s symptoms, the ALJ may discount
that testimony by providing “reasons that are germane to each
witness.” Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993).
The ALJ found that Shields’ “statements are inconsistent with
[Greger’s] presentation to treating physicians during the
period at issue, and with [Greger’s] failure to participate in
cardiac rehabilitation.” The ALJ also considered Shields’
“close relationship” with Greger, and that she was possibly
“influenced by her desire to help [him].” The ALJ’s reasons
for doubting Shields’ credibility are germane to her; accord-
ingly, it was not error for the ALJ to disregard her testimony.

   Greger also argues that this matter must be remanded so
that the ALJ can examine Shields and properly assess her
credibility. At the hearing, however, Greger’s attorney agreed
                      GREGER v. BARNHART                   11757
to have Ms. Shields submit an affidavit in lieu of testifying
due to the lack of time that day. Accordingly, there is no
error.

                             III.

   Greger argues that the ALJ erred in assessing his RFC
because the hypothetical posed to the vocational expert at
Greger’s hearing did not specifically include Greger’s claim
that the Atenolol produced the side effect of fatigue. The ALJ,
though, “is free to accept or reject restrictions in a hypotheti-
cal question that are not supported by substantial evidence.”
Osenbrock v. Apfel, 240 F.3d 1157, 1164-65 (9th Cir. 2001).
Because Greger did not report any fatigue to his doctors dur-
ing the relevant period, the ALJ properly limited the hypothet-
ical to the medical assumptions supported by substantial
evidence in the record.

                              IV.

   [3] Greger argues for the first time on appeal that the ALJ
erred in finding his psychological problems not severe when
the VA had rated him 30% disabled due to PTSD and that the
ALJ failed to develop the record by not ordering a consulta-
tive psychological evaluation. Greger has waived these issues
because he did not raise them before the district court. The
Ninth Circuit recognizes three exceptions to the general rule
that the court will not consider an issue raised for the first
time on appeal: “in the ‘exceptional’ case in which review is
necessary to prevent a miscarriage of justice or to preserve the
integrity of the judicial process, when a new issue arises while
appeal is pending because of a change in the law, or when the
issue presented is purely one of law and either does not
depend on the factual record developed below, or the perti-
nent record has been fully developed.” Bolker v. C.I.R., 760
F.2d 1039, 1042 (9th Cir. 1985) (citations omitted). The court
“will only excuse a failure to comply with this rule when nec-
11758                 GREGER v. BARNHART
essary to avoid a manifest injustice.” Meanel v. Apfel, 172
F.3d 1111, 1115 (9th Cir. 1999).

   [4] Greger argues that the ALJ made legal errors and that
it would be an injustice to not remand for consideration of the
PTSD issue. We do not believe the ALJ erred in this case or
that this is the exceptional case in which review is needed to
prevent a miscarriage of justice. Greger never raised the issue
of PTSD as a basis for finding him disabled before either the
Social Security Administration or the district court. His dis-
ability claim prior to this appeal related only to his physical
problems. PTSD was only brought up when the ALJ was
questioning Greger as to why he had problems getting along
with his former supervisor and left his truck-driving job in
1992. It was the ALJ who first raised whether Greger had a
rating from the VA for PTSD, and the ALJ specifically
inquired about the VA’s percentage rating for PTSD and
when Greger first received that rating. Nonetheless, Greger,
who was represented by counsel at all times, failed to claim
PTSD as a basis for his disability. Therefore, the issue is
waived.

   The dissent suggests that the court should consider these
newly-raised issues because they involve a pure question of
law, i.e., that the ALJ erred by not referencing the VA’s dis-
ability rating, as required by McCartey v. Massanari, 298
F.3d 1072 (9th Cir. 2002). The claimant in McCartey, though,
had asserted from the outset that his primary disability was
the same impairment for which the VA had rated him 80%
disabled, but the ALJ’s decision never mentioned the VA’s
disability rating. Greger never raised the issue of PTSD or his
30% VA disability rating until this appeal.

   [5] Greger asserts that this is his only opportunity to estab-
lish his eligibility for disability benefits, as he cannot file a
new claim after this. Greger, however, has had several oppor-
tunities over the past few years to raise the issue of his PTSD.
His initial claim never mentioned his PTSD or any mental
                     GREGER v. BARNHART                   11759
health problems. He was represented by counsel at his hearing
before the ALJ and never claimed at that time that he suffered
from disabling PTSD; it was the ALJ who inquired about
Greger’s PTSD rating from the VA. Greger had an opportu-
nity to brief the PTSD issue before the Appeals Council, but
did not. In his appeal to the district court, Greger’s new law-
yers, in their recitation of the facts, summarized Greger’s tes-
timony before the ALJ, including the discussion of Greger’s
PTSD and 30% disability rating from the VA, but they never
suggested that PTSD was a basis for finding Greger was dis-
abled. Only when Greger obtained new counsel for this appeal
and it appeared that his claim of physical disabilities would
fail did he ever suggest that he was disabled due to PTSD.

   [6] In sum, our independent review of the record does not
reveal any miscarriage of justice or error of law in the admin-
istrative proceedings.

  Accordingly, the district court’s judgment is AFFIRMED.



FERGUSON, Circuit Judge, dissenting:

   Leonard Greger suffers from Post-Traumatic Stress Disor-
der (“PTSD”) arising out of his experiences during his mili-
tary service in Vietnam. In 1998, the Veterans Administration
(“VA”) rated Greger as 30% disabled due to his PTSD diag-
nosis. According to Greger, his PTSD makes it difficult for
him to get along with authority, causes him to be irritable, and
contributes to his anger control problems. Greger also testi-
fied that he has had trouble sleeping due to nightmares. Since
1998, Greger has been on anti-anxiety and anti-depressant
medication to control his psychological problems, and previ-
ously saw a psychiatrist. In 2000, Greger told a VA examiner
that, in addition to his other symptoms, his memory and con-
centration are poor. That same examiner noted that Greger
suffers from “some vague, paranoid thoughts.” And during
11760                 GREGER v. BARNHART
the examination, Greger took the Mississippi Scale of Combat
Stress test and received a raw score of 131, which, according
to the VA examiner, “is about average for those diagnosed
with PTSD.”

   PTSD is a tragic disease that commonly interferes with a
sufferer’s ability to interact with other people and maintain
work relationships. See Kathleen A. Tarr, Above and Beyond:
Veterans Disabled by Military Service, 5 GEO. J. ON FIGHTING
POVERTY 39, 44 (1997). When determining whether a veteran
is eligible for social security disability benefits, therefore, an
Administrative Law Judge (“ALJ”) must pay particularly
close attention to the VA’s findings regarding a PTSD diag-
nosis. See McCartey v. Massanari, 298 F.3d 1072, 1076 (9th
Cir. 2002). Here, in denying Greger benefits, the ALJ failed
to even mention that the VA rated Greger as 30% disabled
due to his PTSD. This omission is reversible error. Id. Addi-
tionally, the ALJ’s conclusion that Greger’s mental impair-
ments are not severe is not supported by substantial evidence.
For these reasons, I respectfully dissent from the majority’s
affirmance of the ALJ’s denial of Greger’s request for social
security disability insurance benefits.

   The majority holds that Greger’s PTSD-related claims are
waived because of his failure to argue them before the District
Court. Maj. op. at 11757-58. We have, however, recognized
three exceptions to this pleading requirement. Taniguchi v.
Schultz, 303 F.3d 950, 959 (9th Cir. 2002). Most applicable
here is the exception that allows us to consider a claim not
raised before the District Court if that claim is “purely one of
law and the opposing party would suffer no prejudice as a
result of the failure to raise the issue” below. Id. Whether an
ALJ must consider, on the record, a VA disability rating when
reaching his decision is a question of law. See McCartey, 298
F.3d at 1076 (creating the rule that an ALJ procedurally errs
when he fails to consider a VA finding and does not mention
that finding in his opinion); cf. Silveira v. Apfel, 204 F.3d
1257, 1260 & n.8 (9th Cir. 2000) (holding that whether an
                     GREGER v. BARNHART                   11761
ALJ should have applied a regulation, which required a find-
ing of disability under certain circumstances, to a particular
claimant’s case is a pure question of law). Furthermore, in her
answering brief, the Commissioner had the opportunity to
address this purely legal claim; thus, the Commissioner is not
prejudiced by our consideration of the issue. See id. at 1260
n.8 (considering a claim raised for the first time on appeal
because the claim was a pure issue of law that the Commis-
sioner had the opportunity to respond to on appeal).

   Proceeding to the merits of Greger’s claim, in McCartey we
held that an ALJ must generally give great weight to a VA
determination of disability. McCartey, 298 F.3d at 1076. Such
deference is justified because of the “marked similarity”
between the purposes and evaluation procedures employed by
both the social security and VA federal disability programs.
Id. If an ALJ chooses to give less weight to a VA determina-
tion, therefore, he must give “persuasive, specific, valid rea-
sons for doing so that are supported by the record.” Id.
Reversal is warranted if the ALJ does not provide evidence
that he adequately considered the VA’s rating, such as by
explicitly mentioning that rating in his opinion. Id.

   Here, despite the fact that Greger informed the ALJ of his
VA rating for PTSD, the ALJ made no mention of the VA’s
finding in his consideration of Greger’s disability claim. The
ALJ cursorily acknowledged Greger’s history of post-
traumatic stress disorder and completely failed to reference
either the VA’s rating or its basis. Further, it is not apparent
from the record that the ALJ otherwise considered the VA’s
rating. The omission is a clear violation of McCartey.

   Therefore, I would reverse the District Court and remand
with instructions to send the case back to the ALJ for addi-
tional factual development and consideration of the impact of
Greger’s PTSD on his ability to function in the workplace.

 Remand is especially important in this case because the
ALJ’s findings regarding Greger’s mental impairments are
11762                   GREGER v. BARNHART
not supported by substantial evidence. Greger testified that his
PTSD makes it hard for him to get along with authority,
makes him irritable, and contributes to his anger control prob-
lems. The ability to respond “appropriately to supervision, co-
workers, and work pressures” is an important part of the
assessment of a claimant’s functional capacity. See 20 C.F.R.
§ 404.1545(c). The symptoms Greger describes would
severely impact his ability to function in any workplace.

   The ALJ may not reject Greger’s subjective complaints
without providing “specific, cogent reasons for the disbelief.”
Morgan v. Commissioner, 169 F.3d 595, 599 (9th Cir. 1999).
“Without affirmative evidence showing the claimant is malin-
gering, the Commissioner’s reasons for rejecting the claim-
ant’s testimony must be clear and convincing.” Id. The ALJ
countered Greger’s description of the severity of his PTSD
symptoms by finding that Greger did not seek ongoing treat-
ment for his mental conditions, or ever seek mental status test-
ing.1 This finding is simply not supported by the evidence.
First, the record shows that Greger was taking anti-anxiety
and anti-depressant drugs to keep his symptoms under con-
trol. Moreover, he was given the Mississippi Scale of Combat
Stress test by the VA in 2000 and received an average score
for those suffering from PTSD. While this testing took place
after the relevant time period, a subsequent diagnosis should
still be considered by the ALJ “because it may bear upon the
severity of the claimant’s condition before the expiration of
his insured status.” Loza v. Apfel, 219 F.3d 378, 396 (5th Cir.
2000).
  1
   The Veterans Administration notes that many soldiers who show initial
signs of PTSD are reluctant to seek treatment because they “may be
ashamed of opening themselves up to professionals and are very con-
cerned about taking on a ‘sick’ or ‘weak’ persona.” Brett T. Litz, The
Unique Circumstances and Mental Health Impact of the Wars in Afghani-
stan and Iraq, PTSD Support Services, Aug. 15, 2006, http://
www.ptsdsupport.net/PTSD_a%20new_generation.html.
                     GREGER v. BARNHART                   11763
   Additionally, the ALJ noted that treating physicians and
other health care professionals “have not reported any signifi-
cant psychological or depressive symptoms.” The ALJ then
concluded that Greger’s PTSD had, at most, a de minimis
affect on his ability “to interact socially or adapt.” This con-
clusion is contradicted by the VA’s 30% disability rating. The
VA undertakes a very thorough review of a claimant’s medi-
cal history before rating that claimant as disabled. See
McCartey, 298 F.3d at 1076. Thus, in granting Greger bene-
fits, the VA’s health care professionals necessarily would
have determined that Greger suffered from significant psy-
chological symptoms. The ALJ’s error in not addressing the
VA’s rating on the record, therefore, is compounded by the
fact that the VA’s finding contradicts the ALJ’s conclusions
regarding the severity of Greger’s impairment.

  For these reasons, a remand is necessary; therefore, I would
reverse.
