FILED

NOT FOR PUBLICATION

JUL 19 2019

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KAY ANN NABIS-SMITH, ) No. 18-35757 ) Plaintiff-Appellant, ) D.C. No. 6:16-cv-01915-JR ) v. ) MEMORANDUM* )

ANDREW M. SAUL, )

Commissioner of Social Security, ) ) Defendant-Appellee. ) )

Appeal from the United States District Court for the District of Oregon Michael J. McShane, District Judge, Presiding

Submitted July 8, 2019** Portland, Oregon

Before: FERNANDEZ, GRABER, and OWENS, Circuit Judges.

Kay Ann Nabis-Smith appeals the district court’s judgment affirming the

Commissioner of Social Security’s (Commissioner’s) denial of her 2015

application for supplemental security income (SSI) benefits. We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a)(2). Because the Commissioner had denied Nabis-Smith’s earlier application for

SSI benefits in 2012, the administrative law judge (ALJ) could presume that Nabis-

Smith continued to be able to work unless Nabis-Smith proved “changed

circumstances”—i.e., that her impairments had become more severe. See Lester v.

Chater, 81 F.3d 821, 827 (9th Cir. 1995); Chavez v. Bowen, 844 F.2d 691, 693 (9th

Cir. 1988); SSAR 97-4(9), 62 Fed. Reg. 64,038, 64,039 (Dec. 3, 1997).

Substantial evidence supports the ALJ’s conclusion that Nabis-Smith failed to do

so. See Booz v. Sec’y of Health & Human Servs., 734 F.2d 1378, 1380 (9th Cir.

1984).

The ALJ provided “‘specific and legitimate reasons’ . . . , supported by

substantial evidence,” to discount some of Dr. Spiller’s opinions regarding the

extent of Nabis-Smith’s purported disability. See Bray v. Comm’r of Soc. Sec.

Admin., 554 F.3d 1219, 1228 (9th Cir. 2009). The ALJ also reasonably concluded

that the opinions of Drs. Piercey and Smyth were not sufficient to show that Nabis-

Smith’s condition had deteriorated since 2012. See Meanel v. Apfel, 172 F.3d

1111, 1113–14 (9th Cir. 1999); see also Turner v. Comm’r of Soc. Sec., 613 F.3d

1217, 1222–23 (9th Cir. 2010). Finally, the ALJ gave “specific, clear and

2 convincing reasons,”1 supported by substantial evidence, to discredit Nabis-

Smith’s claim of complete disability on the grounds that it was inconsistent with

both her daily activities2 and the level of treatment she received.3 Thus, the ALJ

properly adopted the 2012 residual functional capacity (RFC) assessment, which

incorporated all of Nabis-Smith’s pertinent limitations.4

Although the ALJ erred in relying on vocational expert testimony from the

2012 hearing that was not in the record,5 the error was harmless because Nabis-

Smith’s RFC remained the same and, therefore, the vocational expert testimony

would remain the same. See Tommasetti, 533 F.3d at 1038; see also McLeod, 640

F.3d at 888.

AFFIRMED.

1 Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (internal quotation marks omitted); see also id. at 1112–13. 2 See id. at 1113; see also Burch v. Barnhart, 400 F.3d 676, 680–81 (9th Cir. 2005); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 3 See Molina, 674 F.3d at 1113–14; Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). 4 See Turner, 613 F.3d at 1223; Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008); see also McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011). 5 Albalos v. Sullivan, 907 F.2d 871, 874 (9th Cir. 1990) (per curiam); see also 20 C.F.R. § 416.1453(a).

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