                                                                              FILED
                              NOT FOR PUBLICATION                             NOV 19 2012

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



                               FOR THE NINTH CIRCUIT


MATHEW S. ALLEN,                                  No. 11-16628

                 Plaintiff - Appellant,           D.C. No. 1:10-cv-01117-DLB

  v.
                                                  MEMORANDUM*
COMMISSIONER OF SOCIAL
SECURITY,

                 Defendant - Appellee.


                      Appeal from the United States District Court
                         for the Eastern District of California
                     Dennis L. Beck, Magistrate Judge, Presiding**

                              Submitted August 24, 2012***


Before:         HUG, FARRIS, and LEAVY, Circuit Judges.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
                Gray consented to proceed before a magistrate judge. See 28 U.S.C. §
636(c).
          ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Mathew S. Allen appeals the district court’s order affirming the decision of

the administrative law judge (ALJ) denying his application for disability benefits.

We review de novo the district court’s order affirming the ALJ’s denial of benefits.

Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). We may reverse the

Commissioner’s decision only if it is not supported by substantial evidence or is

based on legal error. Id. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.1

      Allen argues that the ALJ erred by rejecting Dr. Baron’s medical opinions

because they were mixed with opinions that Allen was disabled and that there were

no jobs available for him. An impairment is a purely medical condition, but “a

disability is an administrative determination of how an impairment . . . affects [the

claimant’s] ability to engage in gainful activity.” McLeod v. Astrue, 640 F.3d 881,

885 (9th Cir. 2011). A treating physician’s opinion on the availability of jobs and

whether a claimant is disabled are opinions on issues reserved to the

Commissioner. 20 C.F.R. §§ 404.1527(d)(1)-(2), 416.927(d)(1)-(2). A treating

source’s opinion on issues reserved to the Commissioner can never be entitled to

controlling weight or given special significance. SSR 96-5p, 1996 WL 374183 *5.



      1
       Because the parties are familiar with the facts underlying this appeal, we do
not recount the facts here.

                                          2
The ALJ correctly rejected Dr. Baron’s opinions about the availability of jobs and

Allen’s disability. Id.

      Allen contends that the ALJ erred by choosing not to assign controlling

weight to Dr. Baron’s medical opinions. In order to reject the medical opinion of a

treating physician, when that opinion is contradicted, the ALJ must state specific

and legitimate reasons supported by substantial evidence in the record. Edlund v.

Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001). “An ALJ may reject a treating

physician’s opinion if it is based to a large extent on a claimant’s self-reports that

have been properly discounted as incredible.” Tommasetti, 533 F.3d at 1041

(internal quotation marks omitted). The ALJ provided specific and legitimate

reasons supported by substantial evidence explaining that Dr. Baron based her

opinion on Allen’s incredible subjective complaints. Id.

      Allen also argues that the ALJ erred by rejecting Dr. Baron’s medical

opinion because Mr. Parker, a physician’s assistant, provided most of Allen’s

treatment. If the treating physician’s opinion is not given controlling weight, the

ALJ must consider the “nature and extent of the treatment relationship.” Orn v.

Astrue, 495 F.3d 625, 631 (9th Cir. 2007); 20 C.F.R. 404.1527(c)(2)(ii),

416.927(c)(2)(ii). The ALJ reasoned that since Mr. Parker treated Allen most of

the time, Dr. Baron had an insubstantial knowledge of Allen’s ailments. Dr.


                                           3
Baron’s limited treatment relationship with Allen was a specific and legitimate

reason to assign little weight to Dr. Baron’s opinion. Id.

      Allen contends that the ALJ erred by failing to assign controlling weight to

Dr. Stoltz’s opinion. The ALJ may reject the opinion of an examining physician

by providing specific and legitimate reasons supported by substantial evidence in

the record. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). The ALJ

articulated specific and legitimate reasons supported by substantial evidence in the

record for choosing not to assign controlling weight to Dr. Stoltz’s opinion

explaining that it was out of line with the objective evidence and based on false

information. Id.

      Allen claims that the ALJ erred by relying on Allen’s lack of mental health

treatment as one reason for finding that he did not suffer from a severe mental

impairment. Failure to seek treatment is not a substantial basis on which to

conclude that a claimant’s mental impairment is not severe. Nguyen v. Chater,

100 F.3d 1462, 1465 (9th Cir. 1996). The ALJ erred by relying on Allen’s

minimal treatment history as a reason for finding that he did not suffer from a

severe mental impairment. Id. However, this error is harmless because substantial

evidence supports the ALJ’s ultimate determination that Allen does not suffer from




                                          4
a severe mental impairment. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050,

1055 (9th Cir. 2006).

      The Commissioner argues that Allen does not suffer from a severe mental

impairment because evidence in the record indicates that his mental impairment

can be adequately controlled by medication. “Impairments that can be controlled

effectively with medication are not disabling for the purpose of determining

eligibility for SSI benefits.” Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001,

1006 (9th Cir. 2006). The record shows Allen’s mental impairment can be

adequately controlled by medication. Therefore, Allen’s mental impairment

cannot be considered to be severe. Id.

      Allen argues that the ALJ erred by failing to consider the opinion of Dr.

Ikawa, a State agency psychological consultant, that Allen is moderately limited in

activities of daily living and has moderate difficulties in maintaining concentration,

persistence, or pace. A moderate limitation in activities of daily living and in

maintaining concentration, persistence, or pace tends to show the presence of a

severe mental impairment. 20 C.F.R. §§ 404.1520a(d)(1), 416.920a(d)(1). An

ALJ is not bound by the findings and other opinions of State agency psychological

consultants. 20 C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i). The ALJ found

evidence in the record indicating that Allen’s mental impairment was not severe.


                                          5
The ALJ was not bound by Dr. Ikawa’s opinion and therefore did not err in

rejecting it. Id.

       Allen argues that the ALJ erred by rejecting Dr. Michiel’s opinion. The ALJ

may reject the opinion of an examining physician by providing specific and

legitimate reasons supported by substantial evidence in the record. Lester, 81 F.3d

at 830-31. The ALJ articulated specific and legitimate reasons supported by

substantial evidence in the record for choosing not to assign controlling weight to

Dr. Michiel’s opinion reasoning that it was based on Allen’s incredible subjective

complaints. Tommasetti, 533 F.3d at 1041.

       Finally, Allen argues that the ALJ erred by failing to consider the California

workers’ compensation ratings assessed by Dr. Whyman which indicated the

presence of a severe mental impairment. The California Guidelines for Work

Capacity are not conclusive in a Social Security case. Macri v. Chater, 93 F.3d

540, 543-44 (9th Cir. 1996). The ALJ considered Dr. Whyman’s entire report, not

just the portion containing the workers’ compensation ratings. The report as a

whole indicated that Allen suffered from a mental impairment but that the

impairment was not severe. The ALJ did not err by failing to consider the

California workers’ compensation ratings. Id.

       AFFIRMED.


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