FILED
NOT FOR PUBLICATION
JUL 19 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KAY ANN NABIS-SMITH, ) No. 18-35757
)
Plaintiff-Appellant, ) D.C. No. 6:16-cv-01915-JR
)
v. ) MEMORANDUM*
)
ANDREW M. SAUL, )
Commissioner of Social Security, )
)
Defendant-Appellee. )
)
Appeal from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge, Presiding
Submitted July 8, 2019**
Portland, Oregon
Before: FERNANDEZ, GRABER, and OWENS, Circuit Judges.
Kay Ann Nabis-Smith appeals the district court’s judgment affirming the
Commissioner of Social Security’s (Commissioner’s) denial of her 2015
application for supplemental security income (SSI) benefits. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
Because the Commissioner had denied Nabis-Smith’s earlier application for
SSI benefits in 2012, the administrative law judge (ALJ) could presume that Nabis-
Smith continued to be able to work unless Nabis-Smith proved “changed
circumstances”—i.e., that her impairments had become more severe. See Lester v.
Chater, 81 F.3d 821, 827 (9th Cir. 1995); Chavez v. Bowen, 844 F.2d 691, 693 (9th
Cir. 1988); SSAR 97-4(9), 62 Fed. Reg. 64,038, 64,039 (Dec. 3, 1997).
Substantial evidence supports the ALJ’s conclusion that Nabis-Smith failed to do
so. See Booz v. Sec’y of Health & Human Servs., 734 F.2d 1378, 1380 (9th Cir.
1984).
The ALJ provided “‘specific and legitimate reasons’ . . . , supported by
substantial evidence,” to discount some of Dr. Spiller’s opinions regarding the
extent of Nabis-Smith’s purported disability. See Bray v. Comm’r of Soc. Sec.
Admin., 554 F.3d 1219, 1228 (9th Cir. 2009). The ALJ also reasonably concluded
that the opinions of Drs. Piercey and Smyth were not sufficient to show that Nabis-
Smith’s condition had deteriorated since 2012. See Meanel v. Apfel, 172 F.3d
1111, 1113–14 (9th Cir. 1999); see also Turner v. Comm’r of Soc. Sec., 613 F.3d
1217, 1222–23 (9th Cir. 2010). Finally, the ALJ gave “specific, clear and
2
convincing reasons,”1 supported by substantial evidence, to discredit Nabis-
Smith’s claim of complete disability on the grounds that it was inconsistent with
both her daily activities2 and the level of treatment she received.3 Thus, the ALJ
properly adopted the 2012 residual functional capacity (RFC) assessment, which
incorporated all of Nabis-Smith’s pertinent limitations.4
Although the ALJ erred in relying on vocational expert testimony from the
2012 hearing that was not in the record,5 the error was harmless because Nabis-
Smith’s RFC remained the same and, therefore, the vocational expert testimony
would remain the same. See Tommasetti, 533 F.3d at 1038; see also McLeod, 640
F.3d at 888.
AFFIRMED.
1
Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (internal quotation
marks omitted); see also id. at 1112–13.
2
See id. at 1113; see also Burch v. Barnhart, 400 F.3d 676, 680–81 (9th Cir.
2005); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).
3
See Molina, 674 F.3d at 1113–14; Tommasetti v. Astrue, 533 F.3d 1035,
1039 (9th Cir. 2008).
4
See Turner, 613 F.3d at 1223; Stubbs-Danielson v. Astrue, 539 F.3d 1169,
1174 (9th Cir. 2008); see also McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir.
2011).
5
Albalos v. Sullivan, 907 F.2d 871, 874 (9th Cir. 1990) (per curiam); see also
20 C.F.R. § 416.1453(a).
3