                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            APR 25 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


BARBARA G. NOAH,                                 No.   16-35796

              Plaintiff-Appellant,               D.C. No. 6:15-CV-01803-BR

 v.
                                                 MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,

              Defendant-Appellee.


                    Appeal from the United States District Court
                             for the District of Oregon
                     Anna J. Brown, District Judge, Presiding

                            Submitted April 23, 2018**


Before: GOODWIN, LEAVY, and SILVERMAN, Circuit Judges.

      Barbara Noah appeals the district court’s judgment affirming the

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

insurance benefits and supplemental security income under Titles II and XVI of

      *
             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).
the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291 and 42

U.S.C. § 405(g). We review de novo, Attmore v. Colvin, 827 F.3d 872, 875 (9th

Cir. 2016), and we affirm.

      The administrative law judge (“ALJ”) did not err in finding Noah’s

impairments did not meet or equal Listing 12.07 for somatoform disorders.

Although the ALJ found Noah did not meet any of the Paragraph B criteria under

Listing 12.07, Noah argues the ALJ did not properly analyze Noah’s physical and

mental impairments in combination and that, contrary to the ALJ’s finding, her

limitations on her daily living activities rise to the “marked” level. However,

Noah’s arguments do not show the ALJ erred in finding Noah’s combination of

impairments do not fulfill the Paragraph B criteria–rather, Noah advocates for an

alternative interpretation of the evidence. Because the ALJ supported her

conclusions concerning Noah’s level of limitation with substantial evidence and

provided a rational interpretation of the record, we will uphold the ALJ’s decision.

See Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017).

      Noah’s contention that the ALJ erred by not articulating a proper rationale

for finding Noah’s impairments did not equal Listing 12.07 also lacks merit. While

Noah argues her conditions equal this listing because her impairments result in her

being as functionally limited as those deemed to meet the listing, this is precisely


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the type of argument this court has rejected as inadequate to establish equivalency

to a listed impairment. A claimant cannot illustrate equivalency by “showing that

the overall functional impact of her . . . impairments is as severe as that of a listed

impairment.” Kennedy v. Colvin, 738 F.3d 1172, 1176 (9th Cir. 2013) (citation and

internal quotation marks omitted). Instead, a claimant shows equivalency by

“present[ing] medical findings equal in severity to all the criteria for the one most

similar listed impairment.” Id. (citation and internal quotation marks omitted); see

also Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001). Noah does not proffer the

requisite specific explanation as to how the medical evidence shows her

impairments are medically equivalent to Listing 12.07. In addition, an “ALJ is not

required to discuss the combined effects of a claimant’s impairments or compare

them to any listing in an equivalency determination, unless the claimant presents

evidence in an effort to establish equivalence.” Kennedy, 738 F.3d at 1178 (citation

and internal quotation marks omitted); accord Lewis, 236 F.3d at 514. Because

Noah did not present a specific theory as to how her conditions medically equaled

Listing 12.07, the ALJ did not err.

      The ALJ did not err in discounting Noah’s testimony. The ALJ applied the

requisite two-step framework and cited specific, clear, and convincing reasons for

discounting Noah’s statements. See Trevizo v. Berryhill, 871 F.3d 664, 678 (9th


                                            3
Cir. 2017). The ALJ cited inconsistencies in Noah’s testimony, contradictory

objective medical evidence, and conflicting medical testimony. See Molina v.

Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); Bray v. Comm’r of Soc. Sec. Admin.,

554 F.3 1219, 1227 (9th Cir. 2009); Robbins v. Soc. Sec. Admin., 466 F.3d 880,

887 (9th Cir. 2006). While Noah contends it was improper for the ALJ to “single

out ‘a few periods of temporary well-being . . .’ in an attempt to discredit Noah,”

the record indicates Noah’s treatment providers made similar assessments that

Noah was in no acute distress, appeared well nourished, and displayed a normal

mood over a series of appointments spanning several years. Because the ALJ’s

interpretation of the record is reasonable and supported by substantial evidence, the

ALJ did not err by factoring this information into the analysis of Noah’s testimony.

See Revels, 874 F.3d at 654.

      Although Noah takes issue with the ALJ’s reliance on her failure to quit

smoking as a reason to discount her testimony, the ALJ proffered additional

reasons supported by the record for discounting Noah’s testimony. Therefore, “the

ALJ’s reliance on [Noah’s] continued smoking, even if erroneous, amounts to

harmless error.” Bray, 554 F.3d at 1227.

      Noah also contests the ALJ’s comment that Noah “is a single mother of a

child diagnosed with significant mental health problems” who “feels


                                           4
uncomfortable leaving her son alone” and “has significant motive to remain at

home.” Noah argues this amounts to “unsupported speculation” about Noah’s

motivation for seeking disability benefits and is not supported by the record.

However, the ALJ’s statement was not included with the portion of the ALJ’s

decision analyzing Noah’s testimony. Rather, the ALJ was recognizing the

“competing interests in [Noah’s] life are understandably difficult,” while

nevertheless concluding that “it does not appear that her severe physical or mental

problems would reasonably preclude her from performing a range of unskilled

light work” within the limitations included in her RFC. As a result, this argument

does not address the grounds upon which the ALJ actually discounted Noah’s

testimony.

      The ALJ did not err by discounting lay witness testimony from Noah’s

friend Michelle Dieke. Noah asserts the ALJ did not provide the requisite germane

reasons for discounting Ms. Dieke’s statements because she rejected the lay

witness testimony for the same reasons she discounted Noah’s statements, and the

ALJ did not properly evaluate Noah’s testimony. Because Noah has not shown the

ALJ erred by discounting her own testimony, and Ms. Dieke’s report is

substantially similar to Noah’s subjective complaints, which the ALJ provided

clear and convincing reasons for discounting, “it follows that the ALJ also gave


                                          5
germane reasons for rejecting [Ms. Dieke’s] testimony.” Valentine v. Comm’r Soc.

Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009).

      Finally, Noah contends the ALJ’s hypothetical to the vocational expert was

incomplete because it did not include all of Noah’s symptoms and limitations as

described in her own testimony, Ms. Dieke’s testimony, and the medical opinion

evidence. However, these assertions depend upon the errors Noah alleged

concerning previous steps in the sequential evaluation. Because Noah has not

shown the ALJ erred elsewhere in her analysis, this argument lacks support. See

Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175-76 (9th Cir. 2008).

            AFFIRMED.




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