                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 17 2010

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



                           FOR THE NINTH CIRCUIT

ALBERT JACK HELMKE,                              No. 09-15151

             Plaintiff - Appellant,              D.C. No. CV 07-04604-PJH

  v.
                                                 MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner
Social Security Administration,

             Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Northern District of California
                   Phyllis J. Hamilton, District Judge, Presiding

                           Submitted March 11, 2010**
                            San Francisco, California

Before: WALLACE, GRABER, and McKEOWN, Circuit Judges.

       Albert Jack Helmke appeals from an adverse judgment in this social security

disability case. We review the district court’s judgment de novo, Edlund v.

Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001), and must affirm the decision of


        *
             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. Fed. R. App. P. 34(a)(2).
the Commissioner of the Social Security Administration if it is not based on legal

error and it is supported by substantial evidence, Reddick v. Chater, 157 F.3d 715,

720 (9th Cir. 1998).

      1. Helmke failed to raise his arguments against Dr. Cousino’s May 1987

residual functional capacity assessment, and the vocational expert’s testimony

based on that opinion, in the district court. Therefore, those arguments are waived.

Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006); Warre v. Comm’r of Soc.

Sec. Admin., 439 F.3d 1001, 1007 (9th Cir. 2006).

      2. The administrative law judge ("ALJ") properly evaluated the medical

evidence. Dr. Pletz’ and Dr. Luisi’s statements that Helmke could not work are not

"medical opinions" because such a decision is reserved to the Commissioner. See

20 C.F.R. § 404.1527(e)(1). Additionally, the ALJ reasonably concluded that any

opinion from Helmke’s treating physicians that he could not work should be

discounted because those doctors were advocating for Helmke’s long-term

disability insurance. See Matney v. Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992)

(holding that a doctor’s assessment was entitled to less weight when the doctor

acted as an advocate in the claimant’s attempt to obtain Social Security benefits).

Further, the ALJ properly discounted the opinions of Helmke’s chiropractors.

Because chiropractors are not "acceptable medical sources," 20 C.F.R.


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§ 404.1513(a), their opinions are entitled to less weight than a physician’s, id.

§ 404.1513(d).

      3. The ALJ gave clear and convincing reasons, which are supported by

substantial evidence, that Helmke was not entirely credible. See Thomas v.

Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). Those reasons include the

observation that the medical records fail to support Helmke’s allegedly debilitating

pain symptoms. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1196-

97 (9th Cir. 2004) (holding that examination reports that are inconsistent with a

claimant’s complaints or that show an ability to work undermine a claimant’s

credibility). In addition, the ALJ permissibly noted that Helmke’s daily activities,

such as walking 2.5 miles a day, frequenting the gym, and swimming 5 laps at a

time, demonstrated that he was more capable than he claimed.

      AFFIRMED.




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