Albert Jack Helmke v. MICHAEL J. ASTRUE, Commissioner Social Security Administration

* 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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALBERT JACK HELMKE,
Plaintiff - Appellant,
v.
MICHAEL J. ASTRUE, Commissioner
Social Security Administration,
Defendant - Appellee.
No. 09-15151
D.C. No. CV 07-04604-PJH
MEMORANDUM *
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
FILED
MAR 17 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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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