                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                            NOV 10 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
CARLA JO MORGAN,                                 No. 13-16537

              Plaintiff - Appellant,             D.C. No. 1:12-cv-00470-LJO-SMS

 v.
                                                 MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,

              Defendant - Appellee.


                   Appeal from the United States District Court
                       for the Eastern District of California
                   Lawrence J. O’Neill, District Judge, Presiding

                     Argued and Submitted October 22, 2015
                            San Francisco, California

Before: PAEZ, MURGUIA, and HURWITZ, Circuit Judges.

      Carla Jo Morgan appeals the district court’s judgment affirming the

Commissioner of Social Security’s decision to deny her application for Disability

Insurance Benefits and Supplemental Security Income under Titles II and XVI of


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
the Social Security Act, 42 U.S.C. §§ 401–34, 1381–83f. This Court has

jurisdiction under 28 U.S.C. § 1291. For the reasons that follow, we vacate the

district court judgment and remand with instructions to remand to the agency for

further proceedings.

      We review a district court’s order affirming an Administrative Law Judge

(ALJ)’s denial of disability benefits de novo. Molina v. Astrue, 674 F.3d 1104,

1110 (9th Cir. 2012). The agency’s determination must stand unless it “was not

supported by substantial evidence in the record as a whole or if the ALJ applied the

wrong legal standard.” Id. (citing Stone v. Heckler, 761 F.2d 530, 531 (9th Cir.

2008)).

      Social Security Administration regulations establish a five-step inquiry to

determine a claimant’s entitlement to benefits. 20 C.F.R. §§ 404.1520(a)(4),

416.920(a)(4). Here, the ALJ denied Morgan benefits after concluding at step four

that her impairments allowed her to perform her past work as a secretary. In

evaluating Morgan’s ability to work (her “residual functional capacity”), the ALJ

credited the opinion of a consulting agency physician, Dr. K. Vu, who determined

that Morgan could only engage in “fingering” and “handling” activities for

approximately two-thirds of a typical eight-hour work day. To determine the

specific demands of Morgan’s former work as a secretary, the ALJ relied on


                                          2
Morgan’s description of that work as she actually performed it, see SSR 82-61,

1982 WL 31387 (1982), in which Morgan stated that the job required her to write,

type, and handle small objects for as many as eight hours a day. The ALJ did not

alternatively examine the demands of the job “as ordinarily required by employers

throughout the national economy.” Id. Because the ALJ failed to address or resolve

the conflict between Morgan’s description of her job and Dr. Vu’s assessment of

her capability, we vacate the district court’s judgment and remand with instructions

to remand to the Commissioner of Social Security. See Treichler v. Comm’r of Soc.

Sec. Admin., 775 F.3d 1090, 1104–05 (9th Cir. 2014) (remanding to the agency to

resolve inconsistencies in the record).

      We reject Morgan’s three additional challenges to the ALJ’s decision. First,

although the ALJ failed to discuss a psychologist’s findings about Morgan’s

mental functioning, any error was harmless because the mild mental difficulties

identified would not prevent Morgan from doing her past secretarial work. See

Molina, 674 F.3d at 1111 (“[W]e may not reverse an ALJ’s decision on account of

an error that is harmless.”).

      Second, substantial evidence supports the ALJ’s conclusion that Morgan’s

subjective statements about her pain symptoms were not credible “to the extent

they are inconsistent with the . . . residual functional capacity assessment” as


                                           3
supported by objective medical evidence. As the ALJ noted, Morgan was jailed for

altering a prescription to obtain more pain medication, and her medical records

note that she often tried to refill her medication faster than prescribed and did not

follow her treating physician’s orders regarding their use. These facts substantially

support the ALJ’s adverse credibility finding.

      Third, Morgan argues that the results of MRI brain scans, submitted to the

Appeals Council after the ALJ’s decision, deprive the ALJ’s decision of substantial

evidence. Morgan waived this argument by failing to raise it in the district court.

See Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006). Even if not waived, the

argument would fail, because the MRI results do not show that the damage has

caused limitations that the ALJ failed to consider.

      VACATED AND REMANDED.

      Each party shall bear its own cost on appeal.




                                           4
