                                                                            FILED
                           NOT FOR PUBLICATION
                                                                              JAN 9 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


LYLE WESLEY HAYES,                               No.   16-35011

              Plaintiff-Appellant,               D.C. No. CV-15-008-M-JCL

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

              Defendant-Appellee.


                   Appeal from the United States District Court
                           for the District of Montana
                  Jeremiah C Lynch, Magistrate Judge, Presiding

                            Submitted January 5, 2018**


Before: THOMAS, Chief Circuit Judge, TROTT and SILVERMAN, Circuit
Judges.

      Lyle Wesley Hayes appeals from the district court’s judgment affirming the

decision of the Commissioner of Social Security denying his application for


      *
             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).
supplemental security income under Title XVI of the Social Security Act. We

have jurisdiction under 28 U.S.C. § 1291. We review the district court’s order de

novo, Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014), and we affirm.

      Because treatment notes and Hayes’s hearing testimony indicate that the

medication he takes for congestive heart failure (“CHF”) does not cause any side

effects, the ALJ did not err at step two in finding that CHF was non-severe without

considering the side effects Hayes now alleges or developing the record as to this

issue. Hayes’s additional argument that the ALJ erred in finding that CHF was

non-severe by relying in part on the opinion of examining physician Dr. Walter is

inapposite because the ALJ did not rely on Dr. Walter’s opinion but referred only

to Dr. Walter’s observation that Hayes did not exhibit any signs or symptoms of

CHF upon examination.

      The ALJ did not err at step two in finding that Hayes’s sleep apnea was

non-severe without evaluating this impairment as specified under section 3.10 of

the Listing of Impairments because section 3.10 pertains to the evaluation of

disability at step three, 20 C.F.R. § 416.920(a)(4)(iii), and was therefore

inapplicable to the ALJ’s finding at step two. If Hayes means to argue that the

ALJ erred at step three by not considering whether his sleep apnea met or equaled

the criteria of section 3.10, his argument is meritless because he fails to explain


                                           2
how his impairment meets or equals the criteria of section 3.10. Burch v.

Barnhart, 400 F.3d 676, 682-83 (9th Cir. 2005).

      The ALJ was not required to complete a psychiatric review technique form

to determine the severity of any mental impairment because Hayes did not present

a “colorable claim of mental impairment.” Keyser v. Comm’r Soc. Sec. Admin.,

648 F.3d 721, 725-727 (9th Cir. 2011) (citation omitted).

      The ALJ properly discounted treating physician Dr. Paddock’s controverted

opinion by providing at least two reasons that are specific, legitimate, and

supported by substantial evidence. Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194,

1198 (9th Cir. 2008). Specifically, Dr. Paddock’s opinion lacks support from a

contemporaneous examination and is inconsistent with both Dr. Walter’s opinion

and findings upon examination. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th

Cir. 2005) (ALJ permissibly rejected opinion for reasons including lack of support

from medical and other evidence). Although Hayes argues on a related note that

the ALJ violated 20 C.F.R. § 404.1527(e)(1)(i) (effective Aug. 24, 2012 to Mar.

26, 2017) because Dr. Walter was “deprived of pertinent medical records,” his

argument is meritless. The cited regulation describes what the State agency’s non-

examining medical consultants will do when reviewing the record, but does not




                                          3
impose any obligation on the ALJ or relate to the work of a consultative examiner

like Dr. Walter.

      Although the ALJ erred by discounting vocational counselor Mr. Fowler’s

lay opinion because he is not an “acceptable medical source,” see 20 C.F.R. §

416.927(f) (opinions of medical and non-medical sources will be evaluated

according to the same factors), the error was harmless. The ALJ properly

discounted Mr. Fowler’s opinion for two other germane reasons, namely the fact

that Mr. Fowler’s opinion is inconsistent with both Dr. Walter’s opinion and

Hayes’s lack of medical treatment. Molina v. Astrue, 674 F.3d 1104, 1114 (9th

Cir. 2012).

      Hayes contends that the ALJ erred by failing to discuss treatment notes from

Dr. Forney-Gorman containing diagnoses of headaches and depression, but he does

not discuss any such evidence in his briefing. Moreover, a review of Dr.

Forney-Gorman’s treatment notes reveals no mention of headaches and only one

assessment of “mild depression” more than one year before the application date.

Because Hayes fails to explain how this evidence is significant or probative, he

fails to show that the ALJ erred by not discussing it. See Howard ex rel. Wolff v.

Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003).




                                          4
      Because Hayes did not allege disability on the basis of any mental

impairment and does not point to any treatment of mental impairment during the

adjudicatory period or medical opinions indicating that he endures functional

limitations as a result of mental impairment, a mental consultation was not required

to properly resolve his claim. 20 C.F.R. § 416.919f.

      The ALJ properly discredited Hayes’s testimony on the severity of his

symptoms by providing at least two specific, clear, and convincing reasons.

Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). Hayes’s allegation of

disabling impairment is inconsistent with his admitted abilities to care for himself

without any trouble, prepare meals for himself, do laundry, and drive. See

Garrison, 759 F.3d at 1015 (ALJ may discredit claimant’s testimony if inconsistent

with reported activities). His complaint of fatigue is also inconsistent with

objective medical evidence and Hayes’s lack of medical treatment. See Burch, 400

F.3d at 681 (ALJ may discount credibility of claimant’s complaint if unsupported

by objective medical evidence).

      In the end, the ALJ properly included in the residual functional capacity

assessment and hypothetical question to the vocational expert only those

limitations he found credible and supported by substantial evidence. See Bayliss,

427 F.3d at 1217.


                                          5
AFFIRMED.




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