NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 20 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MOLLYE PARTON, No. 20-35199

Plaintiff/Appellant, D.C. No. 1:19-cv-03160-TOR

v.

MEMORANDUM*

ANDREW SAUL, COMMISSIONER

SOCIAL SECURITY ADMINISTRATION,

Defendant/Appellee.

Appeal from the United States District Court for the Eastern District of Washington Thomas O. Rice, District Judge, Presiding

Submitted April 16, 2021** Seattle, Washington

Before: GRABER, CALLAHAN, Circuit Judges, SELNA, District Judge. ***

Mollye M. Parton appeals the district court’s affirmance of the

* 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 James V. Selna, United States Senior District Judge for the U.S. District Court for the Central District of California, sitting by designation. Commissioner’s denial of her claim for disability benefits.1 We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

1. Parton argues that the Appeals Council erred by failing to consider

new evidence that would have, with reasonable probability, changed the outcome

of the decision. “We review the district court’s decision sustaining the ALJ’s

denial of social security benefits de novo.” Attmore v. Colvin, 827 F.3d 872, 875

(9th Cir. 2016). The Appeals Council shall consider new and material evidence if

it relates to the period on or before the date of the decision and if there is a

reasonable probability the evidence would change the outcome of the decision. 20

C.F.R. §§ 404.970(a)(5) & (b), 416.1470(a)(5) & (b). The new evidence Parton

sought to introduce was an evaluation and opinion from Parton’s treating

physician, Dr. Jackson, stating that Parton was unable to do even sedentary work.

The opinion was duplicative of Dr. Jackson’s prior opinion and not based upon a

new physical evaluation, and thus the Appeals Council reasonably determined that

the evidence would not change the outcome of the decision.

2. Parton next argues that the ALJ erred by not properly weighing the

medical opinion evidence. The ALJ’s decision is reviewed for substantial

evidence. Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). An ALJ must

1 Because the parties are familiar with the facts, we restate only those necessary to explain our decision.

2 provide specific and legitimate reasons for giving less weight to a treating or

examining physician’s contradicted opinion. Lester v. Chater, 81 F.3d 821, 830–

31 (9th Cir. 1995). An ALJ may “reject the opinion of a non-examining physician

by reference to specific evidence in the medical record.” Sousa v. Callahan, 143

F.3d 1240, 1244 (9th Cir. 1998). Parton asserts that the ALJ erred in limiting

Parton’s treating physician’s opinion and discounting the opinions of certain of the

consulting physicians.

The ALJ weighed the contradictory medical opinions and gave limited

weight to the opinion of Parton’s treating physician, Dr. Jackson, because Dr.

Jackson’s opinion was inconsistent with the record as a whole, her examination

results were contradicted by the results of other contemporaneous examinations,

and she did not adequately consider that Parton’s self-reports of pain may have

been influenced by Parton’s drug-seeking behavior. Those constituted specific and

legitimate reasons to discount Dr. Jackson’s testimony. Parton also fails to

demonstrate that substantial evidence did not support the ALJ’s decision to

discount the opinions of consulting physicians Dr. Thompson and Dr. Dalton,

because the ALJ determined those opinions were not consistent with the record as

a whole based on citations to specific medical evidence.

3. Parton further argues that the ALJ failed to list her lumbar spine and

right arm impairments as severe in Step Two of the Five Step Evaluation Process.

3 Step Two is merely a threshold determination and is not meant to identify the

impairments that should be taken into account when determining the residual

functional capacity (RFC). Buck v. Berryhill, 869 F.3d 1040, 1048–49 (9th Cir.

2017). When Step Two is decided in the claimant’s favor, any error is harmless

and cannot be the basis for remand. Id. at 1049. The right arm and lumbar spine

impairments were associated with and connected to Parton’s severe neck and hip

impairments, which the ALJ accounted for in determining the RFC. The district

court correctly determined that the additional impairments did not create

limitations not accounted for in the ALJ’s RFC assessment.

4. Parton finally argues that the ALJ erred by not fully crediting Parton’s

subjective symptom testimony. Because the medical evidence shows that Parton’s

underlying impairments could reasonably produce the symptoms alleged, the ALJ

needed to provide specific, clear, and convincing reasons for rejecting the

testimony. Garrison v. Colvin, 759 F.3d 995, 1014–15 (9th Cir. 2014). The ALJ

provided such reasons here. The ALJ noted the inconsistencies and contradictions

between the objective medical evidence in the record and with Parton’s testimony.

The ALJ determined that Parton’s drug-seeking behavior further detracted from

her testimony regarding her pain and symptoms. The ALJ’s reasons for

discounting Parton’s testimony were specific, clear, and convincing and are

supported by substantial evidence. Coleman v. Saul, 979 F.3d 751, 756 (9th Cir.

4 2020).

AFFIRMED

5