NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

ROBERT E. RUNIONS, 

Plaintiff-Appellant,

 v.

ANDREW M. SAUL, Commissioner of

Social Security, 

Defendant-Appellee.

No. 19-36045

D.C. No. 3:18-cv-06020-MAT

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

Mary Alice Theiler, Magistrate Judge, Presiding

Submitted October 28, 2020** 

Portland, Oregon

Before: GRABER, CLIFTON, and IKUTA, Circuit Judges.

Plaintiff Robert E. Runions appeals from the district court’s order affirming

the Commissioner of Social Security’s final decision denying Runions’ application

for benefits under Title II of the Social Security Act. Reviewing the district court’s

FILED

NOV 3 2020

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 unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).
order de novo, we must independently determine whether the Administrative Law

Judge’s (“ALJ”) decision is free of legal error and supported by substantial

evidence. See Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). 

1. The ALJ did not fail to develop the record fully and fairly because “[a]n

ALJ’s duty to develop the record further is triggered only when there is ambiguous

evidence or when the record is inadequate to allow for proper evaluation of the

evidence.” Mayes v. Massanari, 276 F.3d 453, 459–60 (9th Cir. 2001). Runions’

counsel represented that there was no need to keep the record open and that the

record was complete. Runions, as the disability claimant, had the duty to prove his

disability and to produce evidence to support his claim. See 20 C.F.R.

§ 404.1512(a). Runions does not claim that he made any attempt to submit his

Video-EEG results to the ALJ before the ALJ issued a written decision, or later, to

the Appeals Council or the district court. See Brewes v. Comm’r of Soc. Sec.

Admin., 682 F.3d 1157, 1162 (9th Cir. 2012); 20 C.F.R § 404.970(b); see also 42

U.S.C. § 405(g). Moreover, Runions’ argument regarding the Video-EEG results is

entirely speculative. Runions does not contend that the Video-EEG results support

his disability claim.

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2. Runions waived any challenge to the ALJ’s findings at step two by failing

to raise that challenge to the district court. See Ghanim v. Colvin, 763 F.3d 1154,

1160 (9th Cir. 2014).

3. The ALJ did not err in discounting Runions’ subjective symptom

testimony because the ALJ made “specific findings stating clear and convincing

reasons for doing so.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1196

(9th Cir. 2004) (internal quotation marks omitted). The ALJ found that Runions’

testimony was inconsistent with the “unremarkable” results of diagnostic

examinations and properly considered evidence that Runions’ symptoms were

ameliorated with use of medication. See Wellington v. Berryhill, 878 F.3d 867, 876

(9th Cir. 2017) (“[E]vidence of medical treatment successfully relieving symptoms

can undermine a claim of disability.”); see also 20 C.F.R. §§ 404.1520a(c)(1),

416.920a(c)(1). In addition, the ALJ properly considered Runions’ receipt of

unemployment benefits because Runions held himself out for full-time work in

order to obtain those benefits. See Carmickle v. Comm’r, Soc. Sec. Admin., 533

F.3d 1155, 1161–62 (9th Cir. 2008) (holding that “receipt of unemployment

benefits can undermine a claimant’s alleged inability to work full[-]time” if the

record establishes that the claimant “held himself out as available for full-time . . .

work”); see also Wash. Rev. Code § 50.20.010 (providing that an applicant for

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unemployment benefits in Washington state must certify that he or she is ready,

able, and willing to work). Runions’ application for and receipt of unemployment

benefits in the fourth quarter of 2015 and the first quarter of 2016 directly

contradicts his allegation of disability onset on November 19, 2015. The ALJ also

permissibly found that Runions might be unemployed for reasons other than his

disability because Runions said that the commute to another job was not “worth it.”

Runions did not say that he was unable to make the commute due to his seizure

disorder. The ALJ’s conclusion was rational and must be upheld. See Burch v.

Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“Where evidence is susceptible to

more than one rational interpretation, it is the ALJ’s conclusion that must be

upheld.”).1

4. The ALJ did not err by discrediting Mrs. Runions’ lay testimony. See

Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012) (“[I]f the ALJ gives

germane reasons for rejecting testimony by one witness, the ALJ need only point to

those reasons when rejecting similar testimony by a different witness.”),

superseded by regulation on other grounds.

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 The ALJ erred in citing Runions’ activities as a reason for discounting

Runions’ symptom testimony. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir.

2007). Nevertheless, this error was harmless because the ALJ cited other valid

reasons for discounting Runions’ testimony. See Burch, 400 F.3d at 679.

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5. The ALJ did not err in weighing and evaluating the medical expert

opinions. The ALJ was warranted in giving little weight to Mr. McMeans’ opinion

because it rested entirely on Runions’ self-reporting, the ALJ had already found

Runions’ subjective symptom testimony to be inconsistent with the record

evidence, and a physician assistant is not an “acceptable medical source” for

applications filed before March 27, 2017. See Ghanim, 763 F.3d at 1162; Molina,

674 F.3d at 1111; see also 20 C.F.R. §§ 404.1502(a)(8), 404.1527(c)(3). The ALJ

permissibly gave “significant weight” to the opinions of the non-examining

physicians and psychologists, Dr. Hale, Dr. Rubio, Dr. Donahue, and Dr.

Eisenhauer, due to their training, expertise, and knowledge of the Social Security

disability program’s rules and standards. Runions does not identify how the

opinion of Dr. Pickett, who examined Runions, is inconsistent with the nonexamining psychologists’ findings of mild mental limitations.

6. The ALJ properly incorporated into the RFC only those limitations

supported by substantial evidence and properly relied on a vocational expert

instructed by a hypothetical that was supported by substantial evidence. See

Ghanim, 763 F.3d at 1166.

AFFIRMED.

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