FILED
NOT FOR PUBLICATION
JUL 20 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KIMBERLY ELLSWORTH-GLASMAN, No. 17-35447
Plaintiff-Appellant, D.C. No. 3:16-cv-05699-MAT
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Mary Alice Theiler, Magistrate Judge, Presiding
Submitted July 13, 2018**
Seattle, Washington
Before: CLIFTON and NGUYEN, Circuit Judges, and BATTAGLIA,*** District
Judge.
*
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 Anthony J. Battaglia, United States District Judge for
the Southern District of California, sitting by designation.
Kimberly Ellsworth-Glasman appeals the district court’s decision affirming
the denial of her application for disability insurance benefits under Title II of the
Social Security Act.
1. An error is harmless when, considering the record as a whole, the error did
not affect the ALJ’s ultimate disability determination. Molina v. Astrue, 674 F.3d
1104, 1115 (9th Cir. 2012). A decision of the ALJ will not be reversed for errors
that are harmless. Id. at 1111. If there was any error by the ALJ regarding
Glasman’s amended disability onset date, it was harmless. It is true that the ALJ
referenced records dated prior to January 29, 2009 in her evaluation, but those
record could still have been relevant to the reliability of Glasman’s description of
her condition and treatment. Moreover, the ALJ also cited numerous reports that
pertained directly to the amended time period. Given that the ALJ considered
activities that occurred after January 29, 2009, the ALJ’s error did not affect her
ultimate nondisability determination. See Molina, 674 F.3d at 1115.
2. The ALJ did not err by giving little weight to the opinions of Glasman’s
treating physician, Dr. Smith, and examining physician, Dr. Neims. If the ALJ
rejects a treating or examining physician’s opinion that is contradicted by another
doctor, she must provide specific, legitimate reasons based on substantial evidence
in the record. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 692 (9th
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Cir. 2009). The ALJ discounted the opinions of Dr. Smith because they were
inconsistent with her treatment notes, contemporaneous examinations, and
Glasman’s self-reported activities. Additionally, the ALJ designated little weight to
the opinions of Dr. Neims because they were inconsistent with Dr. Smith’s
treatment notes and relied heavily on Glasman’s self-reported symptoms.
Accordingly, the ALJ provided specific, legitimate reasons, based on substantial
evidence to discount the opinions of Drs. Smith and Neims.
3. The ALJ did not err in assessing Glasman’s pain testimony. When a
claimant presents objective evidence of an underlying impairment, and there is no
evidence of malingering, the ALJ can reject the claimant’s testimony about the
severity of her symptoms only by offering specific, clear and convincing reasons
for doing so. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The ALJ
discounted Glasman’s testimony concerning the intensity, persistence, and limiting
effects of her pain symptoms because: 1) her self-reported engagement in activities
far exceeded her residual functional capacity, and 2) her subjective complaints
were inconsistent with the medical record. Thus, the ALJ provided clear and
convincing reasons for rejecting Glasman’s testimony regarding her pain
symptoms.
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4. The ALJ did not err in evaluating the lay evidence. If the ALJ discounts lay
witness testimony, the ALJ must give reasons germane to each witness. Molina,
674 F.3d at 1114. First, the ALJ asserted that Glasman’s friend downplayed
Glasman’s participation in exercise class after comparing her statement to
Glasman’s own testimony about the class. Second, the ALJ found that Glasman’s
husband reported his wife performing daily household activities that were
inconsistent with her claim of disability. Thus, the ALJ gave reasons germane to
discounting the statements of both witnesses.
5. The ALJ did not err in assessing Glasman’s residual functional capacity
(RFC). Given that the ALJ already found the opinions of Drs. Smith and Neims,
Glasman’s testimony, and the lay witnesses’ reports to be inconsistent with the
evidence in the record, the ALJ was not required to conduct a function-by-function
RFC analysis based on these limitations. See Bayliss v. Barnhart, 427 F.3d 1211,
1217 (9th Cir. 2005).
AFFIRMED.
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