                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 03 2013

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


 ROGER A. TAPIA,                                      No. 10-35612

              Plaintiff - Appellant,                  D.C. No. 3:09-cv-00110-RRB

   v.
                                                      MEMORANDUM*
 CAROLYN W. COLVIN,**

              Defendant - Appellee.

                  Appeal from the United States District Court
                            for the District of Alaska
                Ralph R. Beistline, Chief District Judge, Presiding

                             Submitted May 24, 2013***
                                Fairbanks, Alaska

Before: TASHIMA, TALLMAN, and N.R. SMITH, Circuit Judges.




        *
           This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
         Carolyn W. Colvin is substituted for her predecessor Michael J. Astrue,
Commissioner of Social Security, pursuant to Fed. R. App. P. 43(c)(2).
        ***
           The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Appellant Roger A. Tapia appeals the district court’s affirmance of the

Administrative Law Judge’s (ALJ) decision finding Tapia was not disabled and

ineligible for benefits. We affirm.

      1. The ALJ presented specific findings regarding (1) whether Tapia had a

medically determinable mental impairment; (2) Tapia’s degree of functional

limitation in four functional areas; (3) the severity of Tapia’s mental impairment;

and (4) whether the impairment met or equaled a listed mental disorder. See

Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 725 (9th Cir. 2011) (explaining

the four required steps of the “special psychiatric review technique”). Substantial

evidence supports the ALJ’s findings, including the evaluation of the severity of

Tapia’s mental impairments. See 20 C.F.R. § 404.1520(c) (lack of severe

impairment means claimant is not disabled). To the extent that Tapia argues for a

different interpretation of this evidence, assuming two rational interpretations are

possible, we must affirm the ALJ. See Andrews v. Shalala, 53 F.3d 1035, 1039-40

(9th Cir. 1995).

      Even if the ALJ committed error in his severity finding, the error was

harmless. Where an ALJ commits legal error, it is reversible only if it prejudices

the claimant. See Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). Although




                                          2
the ALJ found at step two that Tapia’s mental impairments were “mild” or “none,”

the ALJ nonetheless considered the mental impairments at the remaining steps.

      2. When assigning weight to medical expert opinions, Social Security

regulations require consideration of the examining relationship, treatment

relationship, supportability, consistency, specialization, and any other relevant

factors. See 20 C.F.R. § 404.1527(c). Under this framework, it was not error for

the ALJ to assign less weight to the medical consultants’ opinions based on their

(1) lack of an in-person examination, id. § 404.1527(c)(1), and (2) unfamiliarity

with all of the relevant record evidence, id. § 404.1527(c)(6).1

      3. Tapia’s passing references to arguments made before the district court are

waived for failure to comply with Federal Rule of Appellate Procedure 28(a)(9).

See Christian Legal Soc’y v. Wu, 626 F.3d 483, 487 (9th Cir. 2010).

      4. We decline to remand to allow the ALJ to consider evidence

subsequently submitted to and reviewed by the Appeals Council. The cited




      1
       Even if the ALJ had given more weight to the medical consultants’
opinions, this would not have changed the outcome at step three. In order to
demonstrate a “listed impairment” of the relevant mental disorders, Tapia would
have had to show “marked” limitation in functioning, which means “more than
moderate but less than extreme.” 20 C.F.R. ch. III, pt. 404, subpt P, app. 1, §
12.00(C).
                                          3
evidence supports the ALJ’s decision and undermines Tapia’s assertions. Thus,

remand would be fruitless.

      AFFIRMED.




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