NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LYNNETTE E. GREEN, 

Plaintiff-Appellant, 

 v. 

NANCY A. BERRYHILL, Acting 

Commissioner Social Security, 

Defendant-Appellee.

No. 15-35694 

D.C. No. 2:14-cv-01487-MAT 

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

Mary Alice Theiler, Magistrate Judge, Presiding

Submitted April 19, 2018**

Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit 

Judges

Lynnette Green appeals the district court’s decision affirming the 

Commissioner of Social Security’s denial of Green’s application for disability 

insurance benefits and supplemental security income under Titles II and XVI 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).

FILED

APR 23 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 15-35694 

Social Security Act. We have jurisdiction under 28 U.S.C. § 1291. We review de 

novo, Rounds v. Comm’r of Soc. Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015), 

and we affirm.

We cannot review the ALJ’s determination that the relevant period for this 

application began on June 19, 2009, because the ALJ decided not to reopen 

Green’s previous disability denial. See Klemm v. Astrue, 543 F.3d 1139, 1144-45

(9th Cir. 2008) (concluding that we cannot review the ALJ’s decision not to open a 

prior disability denial unless there is a colorable constitutional claim of a due 

process violation). Green does not argue in her opening brief that we have

jurisdiction to consider the ALJ’s refusal to reopen her prior claim because it raises 

a colorable constitutional claim of denial of due process. See Carmickle v. 

Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (explaining 

that we will not address issues that are not specifically raised in the opening brief). 

The ALJ was not required to discuss earlier evidence that was not probative of 

Green’s condition during the relevant period for this application. See Hiler v. 

Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (explaining that the ALJ does not need 

to discuss evidence that is neither significant nor probative).

The ALJ provided several specific and legitimate reasons to reject the 

opinion of treating physician Dr. Sargent, including that the opinion predated the 

relevant period, that Green’s activities were inconsistent with the opinion, and that 
3 15-35694 

a gap in treatment was inconsistent with the alleged severity of Green’s limitations. 

See Ghanim v. Colvin, 763 F.3d 1154, 1161-62 (9th Cir. 2014) (including 

frequency of examination and inconsistency with claimant’s activities in the 

factors that the ALJ may consider in weighing a treating physician’s opinion); 

Carmickle, 533 F.3d at 1165 (concluding that medical opinions that predate the 

relevant period are of limited relevance). Any error in relying on additional 

reasons was harmless. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) 

(explaining that error is harmless if it is inconsequential to the ultimate 

nondisability determination).

The ALJ properly rejected Dr. Herman’s opinion based on specific and 

legitimate reasons, including lack of clinical support for Dr. Herman’s opinion 

prior to March 2011, inconsistency with the treatment record, and inconsistency 

with Green’s activities. See Ghanim, 763 F.3d at 1161-62 (inconsistency with the 

treatment record and with claimant’s activities); Bray v. Comm’r of Soc. Sec. 

Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (inadequate support from clinical 

findings). Any error in relying on additional reasons is harmless. See Molina, 674 

F.3d at 1115.

The ALJ provided germane reasons to reject the opinion of Physician’s 

Assistant Ms. Ellis, including inconsistency with Green’s activities and 

inconsistency with Green’s own testimony regarding her pain levels. See 
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Carmickle, 533 F.3d at 1164 (inconsistency with claimant’s activities is a germane 

reason to reject lay testimony); Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001) 

(inconsistency with the claimant’s own testimony is a germane reason to reject lay 

testimony).

The ALJ properly rejected Dr. Moore’s opinion based on specific and 

legitimate reasons, including inconsistency with Dr. Moore’s own clinical findings 

and inconsistency with the treatment record. See Tommasetti v. Astrue, 533 F.3d

1035, 1041 (9th Cir. 2008) (concluding that the ALJ properly rejected a treating 

physician’s opinion based on inconsistencies with the medical record and 

inconsistencies with the treating physician’s own treatment notes). Any error in 

relying on additional reasons is harmless. See Molina, 674 F.3d at 1115.

The ALJ provided specific and legitimate reasons to reject Dr. Washburn’s 

opinion, including inconsistency with Dr. Washburn’s own mental status 

examination findings, inconsistency with Green’s activities, and inconsistency with 

other evidence in the medical record. See Ghanim, 763 F.3d at 1162 

(inconsistency with the claimant’s activities and other evidence in the record); 

Tommasetti, 533 F.3d at 1041 (inconsistency between a physician’s opinion and 

treatment notes).

The ALJ properly rejected Ms. Falsetto’s opinion as inconsistent with the 

medical record. See Molina, 674 F.3d at 1112 (concluding that inconsistency with 
5 15-35694 

other medical records is a germane reason to reject the opinion of a non-acceptable 

medical source).

Green waived the issue of whether the ALJ erred by concluding that her 

carpal tunnel syndrome was non-severe based on Dr. Riel’s opinion by failing to 

raise it before the district court. Ghanim, 763 F.3d at 1160 (concluding that the 

claimant waived an issue by failing to raise it before the district court).

The ALJ properly incorporated all relevant limitations from Dr. Gaffield and 

Dr. Pepka’s opinions into the residual functional capacity (RFC). See StubbsDanielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (concluding that the ALJ 

does not err in assessing the RFC when the ALJ reasonably includes all limitations 

supported by the medical record).

Substantial evidence supports the ALJ’s review of the opinions of Dr. Choi 

and Dr. Fligstein. See Tommasetti, 533 F.3d at 1041 (explaining that “the ALJ is 

the final arbiter with respect to resolving ambiguities” in the medical record).

The ALJ properly discredited Green’s testimony based on clear and 

convincing reasons supported by substantial evidence. Green’s testimony was 

inconsistent with the objective medical evidence, Green’s testimony was 

inconsistent with her daily activities, and the alleged severity of Green’s symptoms 

was inconsistent with conservative and routine treatment. See Tommasetti, 533 

F.3d at 1039-40 (concluding that the ALJ properly discredited claimant testimony 
6 15-35694 

based on inconsistencies with the objective medical evidence and a conservative 

treatment record); Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (explaining 

that the ALJ properly rejected claimant testimony based on inconsistencies with 

the claimant’s activities). The ALJ did not err by failing to make findings 

regarding transferability of Green’s activities to work. See Orn, 495 F.3d at 639 

(explaining that the ALJ can properly discredit claimant testimony either because 

the claimant’s activities are inconsistent with the claimant’s other testimony or 

because the activities show skills that are transferrable to work). Any error in 

relying on additional reasons is harmless. See Bray, 554 F.3d at 1227 (concluding 

that the ALJ’s error in relying on invalid reasons to discredit claimant testimony 

was harmless because the ALJ also provided other clear and convincing reasons to 

discredit claimant testimony).

The ALJ properly include all limitations supported by substantial evidence 

in the RFC and the hypothetical posed to the vocational expert, and Green fails to 

raise any additional issue by restating her arguments regarding the ALJ’s 

assessment of the medical record. Stubbs-Danielson, 539 F.3d at 1175-76.

AFFIRMED.