NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
HEATHER M. LINDEN,

Plaintiff-Appellant,

v. NANCY A. BERRYHILL, Acting Com m issioner of Social Security,

Defendant-Appellee. No. 17-35209 D.C. No. 3:16-cv-05308-DWC
MEMORANDUM *

Appeal from the United States District Court for the Western District of Washington J. Richard Creatura, Magistrate Judge, Presiding

Subm itted June 6, 2018 * * Seattle, Washington Before: BYBEE and N.R. SMITH, Circuit Judges, and ANTOON, * * * District Judge. 

# FILED
JUN 18 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. See Fed. R. App. P. 34(a)(2).

* * * The Honorable John Antoon II, United States District Judge for the Middle District of Florida, sitting by designation.Heather Linden appeals the denial of her application for Social Security

Disability and Supplem ental Security Incom e benefits. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm
. 1. After evaluating each of Linden’s argum ents, we conclude that the ALJ’s form ulation of Linden’s residual functional capacity (RFC) is consistent with the m edical evidence in the record. Substantial evidence supports the ALJ’s RFC determ ination indicating Linden could perform light work subject to certain restrictions.
a. To assess credibility, the ALJ engaged in the required two-step analysis outlined in Molina v. Astrue , 674 F.3d 1104, 1112 (9th Cir. 2012). Citing the statem ents of two of Linden’s exam ining physicians, the ALJ noted that Linden exaggerated her sym ptom s when seeking treatm e nt. A tendency to exaggerate is a valid reason to discount a claim ant’s testim ony. Tonapetyan v. Halter , 242 F.3d 1144, 1148 (9th Cir. 2001). Thus, the ALJ offered a specific, clear, and convincing reason for finding Linden was not entirely credible.

b. The ALJ did not err in evaluating the m edical evidence in the record. In general, Linden argues that the RFC determ ination does not account for all of the lim itations found in Linden’s m edical records. However, the lim itations listed in the RFC determ ination need only be consistent with, rather than identical
2to, the lim itations identified by a treating physician. See Turner v. Comm’r of Soc.

Sec. , 613 F.3d 1217, 1223 (9th Cir. 2010). Here, the lim itations that the ALJ incorporated into Linden’s RFC are consistent with the lim itations identified by the physicians whose opinions the ALJ credited.

c. Linden has failed to show that the ALJ erred in evaluating the testim ony of Linden’s m other. The ALJ gave som e weight to the testim ony of Linden’s m other, and Linden has not identified how the RFC determ ination fails to account for her m other’s observations. In addition, Linden has not cited any authority supporting the proposition that the ALJ was required to credit the lay testim ony of Linden’s m other to the extent it conflicted with the m edical evidence in the record. Thus, Linden has not dem onstrated that the ALJ erred in evaluating her m other’s testim ony. 2. The Com m issioner did not err in om itting from the agency record the additional evidence provided to the Appeals Council. “[W] e do not have jurisdiction to review a decision of the Appeals Council denying a request for review”; however, “the adm inistrative record includes evidence subm itted to and considered by the Appeals Council.” Brewes v. Comm’r of Soc. Sec. Admin. , 682 F.3d 1157, 1161-62 (9th Cir. 2012). Thus, “when the Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, that evidence
3becom es part of the adm inistrative record, which the district court must consider

when reviewing the Com m issioner’s final decision for substantial evidence.” Id. at 1163. Here, the Appeals Council never considered the additional evidence presented by Linden. Rather, the Appeals Council looked at the evidence, determ ined it post-dated Linden’s date last insured, and decided it was not relevant. Because the Appeals Council did not take the evidence into account in deciding to decline review, it is not “evidence upon which the findings and decision
com plained of are based.” 42 U.S.C. § 405(g). Thus, the Com m issioner did not err in om itting the evidence from the agency record. Furtherm ore, the additional m edical report was based on an exam ination conducted nearly four years after Linden’s date last insured, the evidence in the report m ostly duplicated other evidence in the record, and even though the ALJ did not find that Linden’s alleged fibrom yalgia was a severe im pairm ent, the ALJ still considered all of Linden’s sym ptom s in reaching her findings. Thus, any error was harm less. See Decker v. Berryhill , 856 F.3d 659, 665 (9th Cir. 2017) (suggesting that rem and to the ALJ is required only when “the new evidence directly underm ined the basis for the ALJ’s decision”). AFFIRMED.

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