FILED
NOT FOR PUBLICATION
OCT 04 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JACQUETTA NACOSTE-HARRIS, No. 16-35022
Plaintiff-Appellant, D.C. No. 3:14-cv-01594-JO
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Robert E. Jones, District Judge, Presiding
Submitted October 4, 2017 **
Before: CLIFTON, N.R. SMITH, and CHRISTEN, Circuit Judges.
Jacquetta Nacoste-Harris appeals pro se the district court’s decision
affirming the Commissioner of Social Security’s denial of Nacoste-Harris’s
*
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).
application for supplemental security income under Title XVI of the Social
Security Act. We review de novo, Ghanim v. Colvin, 763 F.3d 1154, 1159 (9th
Cir. 2014), and we affirm.
Nacoste-Harris contends that the administrative law judge (“ALJ”)
discriminated against her because she is a former addict and was using marijuana
at the time of her hearing. We disagree. The ALJ did not deny Nacoste-Harris’s
claim on the basis of her past or present drug use. Rather, the ALJ found that
Nacoste-Harris’s “history of crack cocaine dependence and current marijuana
abuse is not a material factor in this decision.” As a result, Nacoste-Harris’s
allegations do not show that the ALJ’s behavior reflected a clear inability to render
fair judgment, and they are not sufficient to rebut the presumption that an ALJ is
unbiased. Bayliss v. Barnhart, 427 F.3d 1211, 1214–15 (9th Cir. 2005).
Construing Nacoste-Harris’s pleadings liberally, Garmon v. Cty. of Los
Angeles, 828 F.3d 837, 846 (9th Cir. 2016), she contends that the ALJ discounted
her testimony about the severity of her symptoms because she is a former addict.
The ALJ did not mention Nacoste-Harris’s former cocaine use or her current
marijuana use as a basis for finding her symptom testimony less than fully
credible. The ALJ did, however, consider Nacoste-Harris’s drug use in
formulating her residual functional capacity (“RFC”), and the ALJ included in the
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RFC greater limitations, in part, to accommodate Nacoste-Harris’s drug use. This
was not only permissible, but required. See Robbins v. Soc. Sec. Admin., 466 F.3d
880, 883 (9th Cir. 2006) (“In determining a claimant’s RFC, an ALJ must consider
all relevant evidence in the record, including, inter alia, medical records, lay
evidence, and ‘the effects of symptoms, including pain, that are reasonably
attributed to a medically determinable impairment.’” (quoting SSR 96-8p, 1996
WL 374184, at *5)). Because the ALJ’s inclusion of additional RFC limitations
benefits, rather than prejudices, Nacoste-Harris, any error in discussing her drug
use is harmless. Cf. Johnson v. Shalala, 60 F.3d 1428, 1436 n.9 (9th Cir. 1995)
(finding harmless an ALJ’s “overinclusion” of limiting factors in the hypothetical
posed to a vocational expert because it benefitted the claimant).
Finally, Nacoste-Harris attached additional evidence to her opening brief.
Remand under 42 U.S.C. § 405(g) is not appropriate because Nacoste-Harris has
not shown a reasonable possibility of a different outcome if the evidence had been
presented to and considered by the agency. Booz v. Sec’y of Health & Human
Servs., 734 F.2d 1378, 1381 (9th Cir. 1984). Four of the pages of Nacoste-Harris’s
new evidence document her substance abuse treatment in 2007, and her subsequent
abstinence from cocaine. As discussed above, the ALJ acknowledged Nacoste-
Harris’s continued abstinence from cocaine use and concluded that her drug use
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was immaterial to the non-disability determination. The other two pages of new
evidence are a report from a September 2015 MRI of Nacoste-Harris’s cervical
spine. Although “reports containing observations made after the period for
disability are relevant to assess the claimant’s disability,” Smith v. Bowen, 849 F.2d
1222, 1225 (9th Cir.1988), Nacoste-Harris offers no argument for how this new
report, which post-dates the ALJ’s decision by nearly two years, is material to the
ALJ’s determination. As a result, Nacoste-Harris has not carried her burden of
demonstrating materiality. Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001).
AFFIRMED.
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