NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 5 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

VERONICA L. WHITTY, No. 19-35634

Plaintiff-Appellant, D.C. No. 3:18-cv-05837-DWC

v.

MEMORANDUM*

ANDREW M. SAUL, Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington David W. Christel, Magistrate Judge, Presiding

Submitted June 1, 2020** Seattle, Washington

Before: GOULD, BEA, and MURGUIA, Circuit Judges.

Veronica Whitty appeals the judgment of the district court affirming the

Commissioner of Social Security’s denial of her claim for disability benefits under

Title II of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291.

* 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). Reviewing the district court’s order de novo, we must affirm the Commissioner’s

decision to deny benefits if it is supported by substantial evidence and free of legal

error. Dale v. Colvin, 823 F.3d 941, 943 (9th Cir. 2016). We affirm.

Whitty filed a claim for disability benefits based on pain and diminished

cognitive functioning. The Administrative Law Judge (“ALJ”) found that Whitty

was disabled beginning January 28, 2008. However, the ALJ denied benefits

based on the finding that Whitty did not become disabled before March 31, 2007,

the date of expiration of her insurance coverage.

Substantial evidence supports the ALJ’s decision that Whitty did not have a

severe impairment or combination of impairments before her date last insured.

First, Whitty submitted only one piece of medical evidence dated during the

relevant period: a report by her treating physician’s assistant. According to that

report, Whitty had recently experienced stress, but she “felt that she was doing

reasonably well.” The physician’s assistant also reported that Whitty was

“appropriately dressed and groomed,” and that she answered questions

appropriately. Also, Whitty became “appropriate[ly]” tearful when discussing her

son’s recent arrest. This physician’s assistant’s report does not compel the

conclusion that Whitty had a severe impairment during the relevant period.

The ALJ also reasonably concluded that subsequently dated medical

evidence did not relate back to the relevant period. Although disability may be

2 established by a retrospective diagnosis, see Flaten v. Sec’y of Health & Human

Servs., 44 F.3d 1453, 1461 (9th Cir. 1995), none of Whitty’s medical evidence

contains a retrospective diagnosis. Because her subsequently dated medical

evidence does not relate back to the relevant period, Whitty has no objective

medical evidence of a severe impairment prior to her date last insured.

Second, the ALJ did not err in discrediting Whitty’s subjective symptom

testimony. The ALJ provided specific, clear, and convincing reasons to reject

Whitty’s testimony about the severity of her symptoms. See Lingenfelter v. Astrue,

504 F.3d 1028, 1036 (9th Cir. 2007). The ALJ rejected Whitty’s testimony based

on the “remarkably sparse” medical record during the relevant period and

inconsistencies in her testimony.

Finally, the ALJ erred in only partially crediting the lay testimony of Carl

Whitty (“Carl”), Whitty’s ex-husband, without explanation, but this error was

harmless. To discount lay witness testimony, the ALJ must give reasons germane

to each witness. Leon v. Berryhill, 880 F.3d 1041, 1046 (9th Cir. 2018). The ALJ

recognized that Carl was in a “unique position to assess [Whitty’s] functional

abilities,” and found Carl’s opinions to be “consistent with the objective medical

evidence.” However, the ALJ gave only partial weight to Carl’s opinions without

giving any reason for doing so. This was error.

3 But this error was harmless because it was “inconsequential to the ultimate

nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir.

2012) (quoting Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th

Cir. 2008)). Here, Carl’s testimony did not contradict the ALJ’s nondisability

determination. Carl provided only limited information about Whitty’s limitations

during the relevant period. Even if the ALJ had assigned full weight to Carl’s

testimony, his testimony does not establish that Whitty had a severe impairment

during the relevant period.

AFFIRMED.

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