NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANDREW A. HIGGINS, 

Plaintiff-Appellant, 

 v. 

NANCY A. BERRYHILL, Acting 

Commissioner Social Security, 

Defendant-Appellee.

No. 14-35941 

D.C. No. 3:13-cv-05987-MAT 

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

Mary Alice Theiler, Magistrate Judge, Presiding

Submitted June 30, 2017**

Before: NELSON, TROTT, and OWENS, Circuit Judges

Andrew Higgins appeals the district court’s decision reversing the 

Commissioner of Social Security’s denial of Higgins’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

JUL 6 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 14-35941 

Social Security Act. The district court remanded to the Commissioner, with 

instructions for the administrative law judge (ALJ) to consider the medical opinion 

of Dr. Bowes and if necessary to reconsider Higgins’s impairments, residual 

functional capacity, and ability to perform jobs that exist in significant numbers in 

the national economy. On appeal, Higgins contends that the ALJ made additional 

legal errors which must be corrected prior to remand. We have jurisdiction under 

28 U.S.C. § 1291. We review de novo, Ghanim v. Colvin, 763 F.3d 1154, 1159 

(9th Cir. 2014), and we affirm.

The ALJ provided specific and legitimate reasons to give less than full 

weight to the opinion of Dr. Heilbrunn. Lester v. Chater, 81 F.3d 821, 830-31 (9th 

Cir. 1995). (1) Dr. Heilbrunn’s opinion was inconsistent with other evidence in the 

record. See Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601-02 (9th Cir. 

1999). (2) Dr. Heilbrunn’s opinion was inconsistent with Higgins’s activities. See 

Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001). Any error in relying on 

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

2012).

The ALJ identified several specific, clear and convincing reasons that are 

supported by substantial evidence for not giving full weight to Higgins’s testimony 

regarding the debilitating effects of his symptoms. Burrell v. Colvin, 775 F.3d 

1133, 1136 (9th Cir. 2014). (1) Medical records showed that Higgins exaggerated 
3 14-35941 

his symptoms. See Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). (2) 

Medical records of conservative pain treatment were inconsistent with the alleged 

severity of symptoms. See Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) 

(explaining that the ALJ properly discredited claimant testimony regarding the 

severity of symptoms when that testimony was inconsistent with a conservative 

treatment record). (3) Higgins’s testimony was inconsistent with objective medical 

evidence. See Tonapetyan, 242 F.3d at 1148. (4) Higgins’s ability to complete 

college courses provided evidence of activities that are transferrable to a work 

setting. See Molina, 674 F.3d at 1113 (finding that the ALJ properly rejected 

claimant testimony as inconsistent with her level of activities). Because it was 

already remanding the case, the district court instructed the ALJ to remedy any 

error in relying on additional reasons to reject Higgins’s testimony on remand. The 

Commissioner concurred with that order.

The ALJ properly relied on inconsistency with the medical record and 

inconsistency with Higgins’s reported level of activity as germane reasons to reject 

the lay witness testimony of Miranda Higgins. See Bayliss v. Barnhart, 427 F.3d 

1211, 1218 (9th Cir. 2005). Any error in relying on additional reasons was 

harmless. See Molina, 674 F.3d at 1122. 

The ALJ included in the residual functional capacity (“RFC”) assessment all 

the physical limitations that were supported by, and consistent with, substantial 
4 14-35941 

evidence in the record. See Bayliss, 427 F.3d at 1217.

Neither party contests the district court’s remand order, requiring the ALJ to 

consider the medical opinion of Dr. Bowes, and if necessary reassess Higgins’s 

impairments, limitations, and ability to perform additional work. Aside from Dr. 

Bowes’s opinion, substantial evidence supports the ALJ’s resolution of ambiguities 

in the medical record regarding Higgins’s mental impairments. See Batson v. 

Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).

Despite the ALJ’s legal error in failing to consider Dr. Bowes’s opinion, 

crediting the evidence as true is inappropriate because there are outstanding issues 

that must be resolved before a determination of disability can be made. See 

Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1093 (9th Cir. 2014).

AFFIRMED.