FILED

NOT FOR PUBLICATION

JUL 20 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KIMBERLY ELLSWORTH-GLASMAN, No. 17-35447

Plaintiff-Appellant, D.C. No. 3:16-cv-05699-MAT

v.

MEMORANDUM*

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Mary Alice Theiler, Magistrate Judge, Presiding

Submitted July 13, 2018** Seattle, Washington

Before: CLIFTON and NGUYEN, Circuit Judges, and BATTAGLIA,*** District Judge.

* 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. See Fed. R. App. P. 34(a)(2). *** The Honorable Anthony J. Battaglia, United States District Judge for the Southern District of California, sitting by designation. Kimberly Ellsworth-Glasman appeals the district court’s decision affirming

the denial of her application for disability insurance benefits under Title II of the

Social Security Act.

1. An error is harmless when, considering the record as a whole, the error did

not affect the ALJ’s ultimate disability determination. Molina v. Astrue, 674 F.3d

1104, 1115 (9th Cir. 2012). A decision of the ALJ will not be reversed for errors

that are harmless. Id. at 1111. If there was any error by the ALJ regarding

Glasman’s amended disability onset date, it was harmless. It is true that the ALJ

referenced records dated prior to January 29, 2009 in her evaluation, but those

record could still have been relevant to the reliability of Glasman’s description of

her condition and treatment. Moreover, the ALJ also cited numerous reports that

pertained directly to the amended time period. Given that the ALJ considered

activities that occurred after January 29, 2009, the ALJ’s error did not affect her

ultimate nondisability determination. See Molina, 674 F.3d at 1115.

2. The ALJ did not err by giving little weight to the opinions of Glasman’s

treating physician, Dr. Smith, and examining physician, Dr. Neims. If the ALJ

rejects a treating or examining physician’s opinion that is contradicted by another

doctor, she must provide specific, legitimate reasons based on substantial evidence

in the record. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 692 (9th

2 Cir. 2009). The ALJ discounted the opinions of Dr. Smith because they were

inconsistent with her treatment notes, contemporaneous examinations, and

Glasman’s self-reported activities. Additionally, the ALJ designated little weight to

the opinions of Dr. Neims because they were inconsistent with Dr. Smith’s

treatment notes and relied heavily on Glasman’s self-reported symptoms.

Accordingly, the ALJ provided specific, legitimate reasons, based on substantial

evidence to discount the opinions of Drs. Smith and Neims.

3. The ALJ did not err in assessing Glasman’s pain testimony. When a

claimant presents objective evidence of an underlying impairment, and there is no

evidence of malingering, the ALJ can reject the claimant’s testimony about the

severity of her symptoms only by offering specific, clear and convincing reasons

for doing so. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The ALJ

discounted Glasman’s testimony concerning the intensity, persistence, and limiting

effects of her pain symptoms because: 1) her self-reported engagement in activities

far exceeded her residual functional capacity, and 2) her subjective complaints

were inconsistent with the medical record. Thus, the ALJ provided clear and

convincing reasons for rejecting Glasman’s testimony regarding her pain

symptoms.

3 4. The ALJ did not err in evaluating the lay evidence. If the ALJ discounts lay

witness testimony, the ALJ must give reasons germane to each witness. Molina,

674 F.3d at 1114. First, the ALJ asserted that Glasman’s friend downplayed

Glasman’s participation in exercise class after comparing her statement to

Glasman’s own testimony about the class. Second, the ALJ found that Glasman’s

husband reported his wife performing daily household activities that were

inconsistent with her claim of disability. Thus, the ALJ gave reasons germane to

discounting the statements of both witnesses.

5. The ALJ did not err in assessing Glasman’s residual functional capacity

(RFC). Given that the ALJ already found the opinions of Drs. Smith and Neims,

Glasman’s testimony, and the lay witnesses’ reports to be inconsistent with the

evidence in the record, the ALJ was not required to conduct a function-by-function

RFC analysis based on these limitations. See Bayliss v. Barnhart, 427 F.3d 1211,

1217 (9th Cir. 2005).

AFFIRMED.

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