NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

DEENA R. DAVIS

Plaintiff-Appellant,

v. NANCY A. BERRYHILL, Acting Commissioner of the Social Security Adm inistration

Defendant-Appellee. No. 17-35195 D.C. No. 2:16-cv-00474-BHS

MEMORANDUM *

Appeal fromthe United States District Court for the Western District of Washington B enjam in H. Settle, District Judge, Presiding Subm itted June 7, 2018 * * Seattle, Washington Before: BYBEE and N.R. SMITH, Circuit Judges, and HUCK, * * * District Judge. 

# FILED

JUN 11 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

* * The panel unanim ously concludes this case is suitable for decision without oral argum e nt. SeeFed. R. App. P. 34(a)(2).

* * * The Honorable Paul C. Huck, United States District Judge for the U.S. District Court for Southern Florida, sitting by designation.Plaintiff-Appellant, Deena R. Davis applied for Social Security Disability

Insurance Benefits and Supplem ental Security Incom e under Titles II and XVI of the Social Security Act. The Acting Comm issioner of Social Security (the “C ommissioner” ) den ie d D a vis’s applications a fter a h e a ring be fore a

n A dministra

tive Law Judge (“ALJ”). The ALJ found Davis to be disabled when considering all of her im pairm ents, including her substance use disorder

. Ho wev er, the ALJ determined that Davis’s lim itations would not be disabl i n g if she stopped using substances, and therefore, pursuant to Social Security Regu l at ions, that her substance use disorder was a contributing factor m aterial to the d et ermi n ation of disability and, thus, that a final determ ination of “no disability” was w arranted

. S ee 42 U.S.C. § 423(d)(2)(C); 20 C.F.R. § 404.1535. The District Court ente re d an O rd e r a ffirm ing the Comm issioner’s final decision, and Davis appealed. On appeal, Davis objects to the ALJ’s disability determ ination. Specifically, Davis argues the ALJ e rred in assessing the m edical evidence, Davis’s testim ony, and the lay witness report of her roomm ate, Carl Johnson. Finally, Davis argues new evidence subm itted to the Appeal s Council shows that the ALJ’s decision is not supported by substantial evidence and was based on legal error.

2We have jurisdiction pursuant to 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and

we affirm

. 1. S ubstantial evidence supports the ALJ’s interpretation of the m edical record. See Thompson v. Schweiker , 665 F.2d 936, 939 (9th Cir. 1982) (“The ALJ' s findings are conclusive if supported by substantial evidence.”). First, the ALJ presented c lear an d convincing reasons supported by substantial evidence for assigning “less w eight” to the opinion of exam ining psychologist, Dr. David Moore, when c onsidering Davis’s con d i t i on in the a bsence of substance use. Bayliss v. Barnhart , 427 F.3d 1211, 1216 (9th Cir. 2005) (“To reject an uncontradicted opinion of a treating or exam ining doctor, an ALJ m ust state c lear and c onvincing reasons that

are supported by substantial e vidence.”). Nam ely, Dr. Moore, who opined that Davis “does not have the e m otional stability to m aintain gainful em ploym ent in either solitary or interpersonal settings at thi s point,” evaluated Davis “at a tim e in which [Davis] was using or had recently” used drugs and linked his opin io n to Davis’s substance use. Though one rational i nt er p retation of Dr. M oore’s records m ay lead to an unlim ited application of h is opinion, another rational interpretation adjudges Dr. Moore’s opinion as solely probative of Davis’s c ondition in the presence of substance

use. See Thomas v. B arnhart , 278 F.3d 947, 954 (9th C ir. 2 0 0 2 ) (“Where the

3evidence is susceptible to m ore than one rational interpretation, one of which supports

the ALJ’s decision, the ALJ’s conclusion must be upheld.”). Next, contrary to D avis’s argum ents, the ALJ did not give excessive weight to the opinions of State agency rev i ewing physicians. Regarding the opinions of the State agency’s reviewing m edical consultants, Robert Hander, M.D., and Charles Wolfe, M.D., the C ourt notes that greater l i mi t ations were im posed in the ALJ’s residual functional c apacity than were reflected in the opinions of Drs

. Hander and Wolfe. N ext, regarding the opinions of State agency reviewing consultants, Matthew Comrie, Psy.D., an d Christm as Covell, Ph.D., their opinions are supported by the clinical record outlined by the ALJ. See SSR 96- 6p (p r o v i d i ng that the opinions of State agency m e dical and psychological consult ant s can be accorded weight if they

ar e s up ported by the case record, “including any evidence received at th e adm i n is trative law judge and Appeals Council levels that was not before the State agency”). Finally, the ALJ extensively summ arized the m edical evidence supporting her determ ination that in the absence of substance use, Davis would not be disabled. Exam ining the record as a wh o l e, the ALJ’s interpretation of the m edical record is supported by substantial evidence.

42. The ALJ offered specific, clear, and convi n ci n g reasons for finding that

Davis’s statem ents concerning the intensity, persistence, and limiting effects of her sym ptom s lacked credib i l i ty . See Smolen v. Chater , 80 F.3d 1273, 1281 (9th Cir. 1996) (“If

. . . there is no evidence of m alingering, the ALJ can reject the claim ant’s testim ony about the severity of her sym p tom s only by offering specific, clear, and convincing r easons for doing so.”). First, the ALJ noted Dr. Moore’s diagnosis of Davis as m alingering, which is probative of D avis’s reliability as an accurate reporter of her condition, and which Davis concedes falls within the scope of what an ALJ m ay properly consider. Furtherm ore, the ALJ summ arized additional record evidence of dishonesty that serve as “serious credibility indicators.” See, e.g. , Burch v . B arnhart , 400 F.3d 676, 680 (9th Cir. 2005) (“[A] n ALJ m ay engage in ordinary techniques of credibility evaluation, such as considering claim ant’s reputation for truthfulness and inconsistencies in claim ant’s testim ony.”). Next, the ALJ extensively developed the c lin i cal evidence of record inconsistent with the alleged severity of D avis’s ailm ents. While subjective sym ptom testim ony cannot be rejected on the sole ground that it is not fully corroborated by objective m edical evidence, such evidence is still a relevant factor in determ ining the credibility of a claim ant’s reporting of th e s ev e rity of her sym ptom s and their disabling effects. Rollins v . Massanari , 261 F.3d 853, 857 (9th Cir. 2001) (citing 20

5C.F.R. § 404.1529(c)(2)); see also Burch , 400 F.3d at 681 (“Although lack of m edical

evidence cannot form the sole basis for discounting pain testim ony, it is a factor that the ALJ c an consider in his credibility analysis.”). Though Davis m ay disagree with the ALJ’s interpret at i on of the record, the latter’s interpretation is supported by substantial evid ence, which precludes the Court from engaging in second-guessing. Thomas , 278 F.3d at 959; see also Burch , 400 F.3d at 679 (“Where evidence is susceptible to m ore than o n e rational interpretation, it is the ALJ’s conclusion that

m ust be upheld.”). The ALJ also disc ounte d D avis’s testim ony because it w as inconsistent with her daily activities. Though the ALJ m ay have overstated the disparity between Davis’s daily activities and her testim ony, specifically a s it relates to her testim ony regarding physical s ym

ptom s, such error, if any, was harm less in light of the aforem entioned evidence. See Carmickle v. Comm’r, Soc. Sec. Admin. , 533 F.3d 1155, 1162 (9th Cir. 2008) (explaining that the invalidity of one or m ore of an ALJ’s reas o ns for an adverse credibility findin g is h armless error “[s] o long as there rem ains ‘substantial evidence supporting the ALJ’s c onclusions on . . . credibility’ and the error ‘does not negate the validity of the ALJ’s ultim ate [credibility] conclusion.’” (quoting Batson v. Comm’r of Soc. Sec. Admin. , 359 F.3d 1190, 1197 (9th Cir. 2004))).

63. The ALJ also did not err in according no wei g ht to the report of Davis’s

roomm ate, Carl Johnson. If an ALJ wishes to discount a lay witness’s testim ony, she

m ust give reasons germ ane to that witness for doing so. Dodrill v. Shalala , 12 F.3d 915, 919 (9th Cir. 1993). The ALJ gav e two such reasons. First, Johnson did not specify whether he observed Davis’ s beh av ior while she was a busing substances, which is im

portant due to the ALJ’s task of determ ining Davis’s residual functional capacity in the absence of substance use. In fact, D avis tested positive for opiates in April 2012, the sam e m onth as Johnson’ s Report. Second, Johnson’s statem ents covered the s am e grounds as those of Davis. Thus, the ALJ’s clear and c onvincing

reasons for lim iting the weight of Davis’s testim ony were germ ane to disregard Johnson’s statem ents. See Valentine v. Comm’r Soc. Sec. Admin. , 574 F.3d 685, 694 (9th Cir. 2009). 4. Lastly, regarding the 17 pages of docum ents the Appeals Council m ade part of the record subsequent to the ALJ’s decision, though these docum ents show lim iting im pairm ents experienced by Davis, they do not do so to the extent requiring rem and or requiring overturning the ALJ’s decision. 1 The judgm ent of the district court is AFFIRMED

. 1 In fact, som e of this evidence supports the ALJ’s decision. For example, Septem ber 2014 m edical records included in these docum ents indicate that Davis’s “[l] um bar MRI [was] without large abnorm alities,” arthritic abnorm alities were not severe, and “no severe findings [were] present.”

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