                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAR 29 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


EDDY LETROY NEW,                                 No. 14-35973

              Plaintiff - Appellant,             D.C. No. 3:13-cv-00094-SLG

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

              Defendant - Appellee.


                    Appeal from the United States District Court
                             for the District of Alaska
                    Sharon L. Gleason, District Judge, Presiding

                            Submitted March 27, 2017**

Before: GOODWIN, LEAVY and SILVERMAN, Circuit Judges.

      Eddy Letroy New appeals pro se the district court’s judgment affirming the

Commissioner of Social Security’s denial of New’s application for supplemental

security income under Title XVI of the Social Security Act. We have jurisdiction


        *
             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).
under 28 U.S.C. § 1291. We review the district court’s order de novo and may set

aside the denial of benefits only if it is not supported by substantial evidence or is

based on legal error. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). We

affirm.

      We construe New’s request that this court consider new evidence not

included in the administrative record as a request for remand under 42 U.S.C.

§ 405(g). See Clem v. Sullivan, 894 F.2d 328, 332 (9th Cir. 1990). We decline to

remand for the agency to consider the new evidence because New has made no

showing that the photographs he submitted for the first time to the district court,

records from his prior supplemental security income claim, or December 2012

records from Alaska Heart Institute are material or that good cause existed for

failing to incorporating them into the administrative record. See id. (requirements

for remand under § 405(g)).

      The ALJ did not err in failing to include fibromyalgia among New’s

medically determinable impairments at step two in the sequential evaluation

process because the record before the ALJ was devoid of medical evidence of

treatment for, or a diagnosis of, fibromyalgia. See Smolen v. Chater, 80 F.3d 1273,

1282 (9th Cir. 1996) (a claimant must “produce objective medical evidence of an

impairment or impairments”).


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      The ALJ identified several specific, clear and convincing reasons that are

supported by substantial evidence for discounting New’s credibility regarding the

debilitating effects of his symptoms: (1) New’s sporadic employment history prior

to the alleged disability onset date undermined his allegations of an inability to

work, (2) New’s statements in support of his application for unemployment

benefits were inconsistent with his allegations of disability, (3) a doctor’s notation

that New was heavily muscled was inconsistent with New’s testimony that he was

inactive, (4) the severity of symptoms that New reported was inconsistent with his

treatment seeking behavior, and (5) New’s symptoms were reasonably well

controlled with appropriate treatment. See Molina, 674 F.3d at 1113 (upholding

adverse credibility determination where the claimant’s symptom testimony was

inconsistent with record medical evidence); Carmickle v. Comm’r, Soc. Sec.

Admin., 533 F.3d 1155, 1161–62 (9th Cir. 2008) (holding oneself out as available

for full-time work in order to obtain unemployment benefits is inconsistent with

allegations of disability); Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (a

poor work history reflecting “little propensity to work in her lifetime” undermined

claimant’s allegations); Smolen, 80 F.3d at 1284 (listing “observations of treating

and examining physicians” among the factors relevant to credibility

determinations). Any error in basing the adverse credibility determination in part


                                           3
on New’s medical non-compliance was harmless because the ALJ supported that

determination with other specific, clear and convincing reasons. See Batson v.

Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004).

      To the extent that New seeks to challenge the residual functional capacity

(“RFC”) assessment for light work with environmental limitations on concentrated

exposure to extreme cold and heat, excessive vibration, fumes, odors, dust and

gasses, all of the limitations included in the RFC were supported by, and consistent

with, substantial record evidence. New has not identified any record evidence that

would support the imposition of different or additional environmental limitations.

      The ALJ was not obliged to consider Americans with Disabilities Act

(“ADA”) accommodations in making the disability determination. See Cleveland

v. Policy Management Sys. Corp., 526 U.S. 795, 800-04 (1999) (contrasting the

purpose and requirements of the Social Security Act and the ADA).

      AFFIRMED.




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