Clifton T. Hastings v. Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLIFTON T. HASTINGS,
Plaintiff - Appellant,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant - Appellee.
No. 12-35761
D.C. No. 3:11-cv-01054-SI
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Submitted May 27, 2014**
Before: D. NELSON, LEAVY, and THOMAS, Circuit Judges.
Clifton T. Hastings appeals pro se the district court’s judgment affirming the
Commissioner of Social Security’s denial of Hastings’s third application for
disability insurance benefits and supplemental security income under Titles II and
FILED
JUL 01 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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XVI of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
The district court did not err in holding that it lacked subject matter
jurisdiction to decide whether the Commissioner failed to meet an obligation to
retain the record of Hastings’s first application for benefits in 2000. The
Commissioner’s retention or loss of records is not a “final decision” subject to
review. See 42 U.S.C. § 405(g); Dexter v. Colvin, 731 F.3d 977, 980 (9th Cir.
2013).
The district court also lacked jurisdiction to consider whether the
Commissioner set an incorrect onset date when granting Hastings’s subsequent,
fourth application for benefits. The court had jurisdiction only to review the
Commissioner’s final decision denying Hastings’s third application for benefits.
See 42 U.S.C. § 405(g); Dexter, 731 F.3d at 980.
Hastings contends that the administrative law judge erred by failing to order
IQ testing because such testing might have established a listed impairment. This
contention lacks merit because the record was adequate to allow for proper
evaluation of the evidence. See Mayes v. Massanari, 276 F.3d 453, 459-60 (9th
Cir. 2001). The low average intellectual functionality reported by an examining
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psychologist would not meet or equal the requirements of the listings. See
Kennedy v. Colvin, 738 F.3d 1172, 1174 (9th Cir. 2013).
Any error in the ALJ’s partial rejection, without explanation, of the opinion
of a non-examining psychologist was harmless because even if the ALJ had
accepted the psychologist’s findings, Hastings’s impairments would not have met
the listings. See Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012).
We decline to consider additional issues unsupported by argument in the
opening brief. See Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th
Cir. 2003).
AFFIRMED.
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