NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 10 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

HOLLY L. BEST, No. 18-35088

Plaintiff-Appellant, D.C. No. 3:16-cv-06040-RAJ

v.

MEMORANDUM*

ANDREW M. SAUL, Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding

Submitted June 5, 2020** Seattle, Washington

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

Holly Best appeals the district court’s affirmance of the Social Security

Commissioner’s denial of her application for disability insurance benefits and

supplemental security income under Titles II and XVI of the Social Security Act.

* 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). Although the Administrative Law Judge (“ALJ”) concluded that Best was disabled

after proceeding through the five-step evaluation process, the ALJ denied Best’s

application because the ALJ found that her alcohol and opioid use were contributing

factors material to her disability. See 42 U.S.C. § 423(d)(2)(C). We have

jurisdiction under 28 U.S.C. § 1291. We review the district court’s affirmance of an

ALJ’s denial of social security benefits de novo and the ALJ’s decision for

substantial evidence and legal error. Garrison v. Colvin, 759 F.3d 995, 1009–10

(9th Cir. 2014). We affirm.

1. Best challenges the ALJ’s finding that her fibromyalgia was not a

severe medically determinable impairment, the ALJ’s alleged failure to develop the

record regarding her fibromyalgia, and the ALJ’s decision to discount her testimony

regarding her fibromyalgia as not credible. Best waived these arguments by failing

to raise them in the district court. See Greger v. Barnhart, 464 F.3d 968, 973 (9th

Cir. 2006).

2. Substantial evidence supports the ALJ’s finding that Best’s substance

abuse was a contributing factor material to her disability. Best’s examining

psychologist, Dr. Alysa Ruddell, opined that Best’s mental impairments were

“primarily the result of alcohol or drug use within the last 60 days” of her mental

status examination. Best’s other treatment providers found that Best’s grief was

“exacerbated by her substance use” and that her self-harm and suicidal ideation were

2 “primarily related to her substance use.” Drs. Michael Brown and Thomas Clifford,

both non-examining medical consultants, also opined that Best’s substance abuse

was material to her disability. During limited periods of sobriety, Best appeared to

improve and have mild to moderate mental limitations, which were otherwise

accounted for in the ALJ’s residual functional capacity (“RFC”) assessment and by

restricting Best to light, entry-level work that required only occasional adaptation to

change in routine.

3. The ALJ did not err by failing to fully credit the opinion of Best’s

examining psychologist, Dr. Ruddell. Although Dr. Ruddell opined that Best had

several “marked” limitations, Dr. Ruddell found they were “primarily the result of

alcohol or drug use within the last 60 days.” Dr. Ruddell’s opinion is therefore

consistent with the ALJ’s conclusion that substance abuse was material to Best’s

disability.

4. The ALJ did not err by discounting Best’s Global Assessment of

Functioning (“GAF”) scores. The ALJ correctly noted that a GAF score is merely

“a rough estimate of an individual’s psychological, social, and occupational

functioning used to reflect the individual’s need for treatment”; it does not have any

direct correlative work-related or functional limitations. Vargas v. Lambert, 159

F.3d 1161, 1164 n.2 (9th Cir. 1998).

3 5. The ALJ did not err by discounting Best’s pain and limitations

testimony. The ALJ proffered specific, clear, and convincing reasons supported by

substantial evidence for discounting Best’s testimony, including that Best failed to

follow her treatment providers’ prescribed course of treatment, her daily activities

were inconsistent with the alleged degree of her disability, and she made inconsistent

statements to treatment providers about her substance abuse. See Trevizo v.

Berryhill, 871 F.3d 664, 679 (9th Cir. 2017); Molina v. Astrue, 674 F.3d 1104, 1112

(9th Cir. 2012); Thomas v. Barnhart, 278 F.3d 947, 958–59 (9th Cir. 2002).

6. The ALJ did not err by discounting the lay testimony of Best’s mother,

Linda Best (“Linda”). The ALJ provided two germane reasons for discounting

Linda’s testimony. See Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). First,

Linda’s testimony was based on Best’s subjective complaints, which the ALJ found

were not credible. Second, Linda’s testimony did not address Best’s substance abuse

and thus was not relevant to the ALJ’s determination that Best’s substance abuse

was material to her disability.

7. The ALJ did not err in assessing Best’s RFC or in posing hypothetical

questions to the vocational expert. The RFC and hypothetical questions properly

included only those limitations the ALJ found credible and supported by substantial

evidence. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005); Batson v.

Comm’r, 359 F.3d 1190, 1197 (9th Cir. 2004). Because the ALJ did not err in

4 assessing Best’s RFC, the ALJ did not err in using it as the foundation for steps four

and five of the sequential evaluation process.

AFFIRMED.

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