NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 23 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRENDA L. NIEMI, No. 19-35659

Plaintiff-Appellant, D.C. No. 3:18-cv-05540-MLP

v.

MEMORANDUM*

ANDREW M. SAUL, Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Michelle L. Peterson, Magistrate Judge, Presiding**

Submitted November 18, 2020*** Seattle, Washington

Before: GOULD and FRIEDLAND, Circuit Judges, and CHEN,**** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** This case was assigned, with the consent of the parties, to a Magistrate Judge, pursuant to 28 U.S.C. § 636(c)(1). *** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). **** The Honorable Edward M. Chen, United States District Judge for the Northern District of California, sitting by designation. Brenda Niemi appeals from the district court’s order affirming the denial of

her application for supplemental security income benefits. We affirm.

We review the district court’s order de novo and reverse only if the decision

of the Administrative Law Judge (“ALJ”) “was not supported by substantial

evidence in the record as a whole or if the ALJ applied the wrong legal standard.”

Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012), superseded by regulation

on other grounds.

The ALJ gave specific, clear, and convincing reasons for discounting

Niemi’s subjective testimony. Id. at 1112. The ALJ observed that Niemi’s

testimony conflicted with the daily activities she had reported engaging in when

speaking with doctors in the years since her alleged onset date. See Batson v.

Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1196-97 (9th Cir. 2004) (holding that

“contradictions in the claimant’s own testimony about his activities of daily living”

can support an ALJ’s negative credibility determination). The ALJ also explained

that portions of Niemi’s testimony were at odds with the mild or moderate findings

made by several different doctors who examined her. Niemi’s minimal treatment

for her purportedly disabling physical conditions, particularly after June 2014, also

supported the ALJ’s adverse credibility determination. See Parra v. Astrue, 481

F.3d 742, 750-51 (9th Cir. 2007) (“[E]vidence of ‘conservative treatment’ is

sufficient to discount a claimant’s testimony regarding severity of an impairment.”

2 (quoting Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995))).

Regarding Niemi’s psychological conditions, the ALJ observed that Niemi

appears to have begun sustained treatment four years after the alleged disability

onset date, at the recommendation of her attorney, “for purposes of applying for

disability benefits.” Niemi contends her initial reluctance to seek treatment for her

mental impairment is not a legitimate reason for discrediting her testimony, given

“it is a questionable practice to chastise one with a mental impairment for the

exercise of poor judgment in seeking rehabilitation.” Garrison v. Colvin, 759 F.3d

995, 1018 n.24 (9th Cir. 2014) (quoting Nguyen v. Chater, 100 F.3d 1462, 1465

(9th Cir. 1996)). In Niemi’s case, however, although she did have an adverse

reaction to some medications, there is no evidence in the record that her decision

not to seek treatment for years was “at least in part a result of her . . . psychiatric

issues.” Id. Accordingly, this lack of mental health treatment also provided a valid

reason for the ALJ to discount Niemi’s subjective testimony. See Molina, 674

F.3d at 1113-14. The ALJ further observed that, once Niemi did finally begin

sustained treatment, her mental health challenges appeared to improve with

counseling and medication. Collectively, these reasons for discounting Niemi’s

testimony are “specific, clear, and convincing.” Id. at 1113.

The ALJ likewise did not commit reversible error when evaluating the

medical evidence. Rather, he provided “specific and legitimate” reasons for

3 according little weight to some medical opinions but significant weight to others.

Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). For example, the ALJ

discounted the conclusions of Dr. Wheeler in her four psychological evaluations

after explaining that they were inconsistent with Niemi’s lack of treatment,

Niemi’s reported daily activities, and, sometimes, with Dr. Wheeler’s own

contemporaneous treatment notes. The ALJ observed that Dr. Wheeler’s findings

seemed to be based on Niemi’s subjective complaints, and the ALJ explained that

this was further reason to assign them limited weight. See Bray v. Comm’r of Soc.

Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (holding that it is reasonable for

an ALJ to discount a physician’s findings that are based on claimant’s “less than

credible statements”).

The ALJ’s evaluation of the medical evidence from other clinicians was also

supported by substantial evidence. When the ALJ discounted certain opinions, he

consistently articulated his rationale. Some evidence he discounted for pre-dating

the alleged disability onset date. See Carmickle v. Comm’r of Soc. Sec. Admin.,

533 F.3d 1155, 1165 (9th Cir. 2008). Other findings he dismissed as beyond the

scope of the clinician’s expertise. See Holohan v. Massanari, 246 F.3d 1195, 1202

n.2 (9th Cir. 2001). Although the ALJ may have erred by failing to assess the

medical evaluation from Dr. Michael Brown, that evaluation pre-dated the alleged

onset of Niemi’s disability by 18 months and was cumulative of the other medical

4 evidence. Any error flowing from that omission was harmless. See Molina, 674

F.3d at 1111.

Lastly, the ALJ’s residual functional capacity (“RFC”) determination and

vocational hypotheticals were also supported by substantial evidence. Niemi’s

challenges to these portions of the ALJ’s decision depend on her attacks on the

ALJ’s evaluation of the medical evidence and subjective symptom testimony—

attacks that fail for the reasons already explained. See Stubbs-Danielson v. Astrue,

539 F.3d 1169, 1175-76 (9th Cir. 2008).

AFFIRMED.

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