                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             DEC 21 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


LINDA SPEARS,                                    No.    15-35033

              Plaintiff-Appellant,               D.C. No. C14-5198-MAT

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

              Defendant-Appellee.


                   Appeal from the United States District Court
                     for the Western District of Washington
                  Mary Alice Theiler, Magistrate Judge, Presiding

                          Submitted December 19, 2017**


Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit Judges.

      Linda Spears appeals the district court’s affirmance of the Commissioner of

Social Security’s denial of her application for disability insurance benefits under

Title II of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291

      *
             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).
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 assessing the medical

evidence concerning Spears’s physical and mental health. Spears’s argument

amounts to a request that we reweigh the evidence, which we cannot do. The

ALJ’s failure to discuss some of Dr. Layton’s records and clinical findings is of no

consequence. “[T]he key question is not whether there is substantial evidence that

could support a finding of disability, but whether there is substantial evidence to

support the Commissioner’s actual finding that claimant is not disabled.”

Jamerson v. Chater, 112 F.3d 1064, 1067 (9th Cir. 1997).

      Contrary to Spears’s allegations, the ALJ did not err in relying upon

consulting physician Dr. Virji’s assessment. The ALJ declined to rely on the

adverse report Dr. Virji commissioned from the Cooperative Disability

Investigations Unit for additional investigation of the veracity of Spears’s claims

because Spears contested the accuracy of the report. Although Dr. Virji discounted

Spears’s subjective reports of her symptoms based on this report, Dr. Virji cited to

objective medical evidence in the record to formulate the opinion upon which the

ALJ relied. Because Dr. Virji’s opinion was supported by objective medical

evidence, the ALJ did not err in relying upon it.


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       Similarly, the ALJ did not err in assessing the evidence from consulting

physician Dr. Arcega. Spears’s contention that the ALJ should have accepted Dr.

Arcega’s opinion that Spears was limited to sedentary work amounts to no more

than a bold assertion unsupported by substantive argument or case law. We need

not address this argument. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d

1155, 1161 n.2 (9th Cir. 2008).

       Spears’s argument that the ALJ violated her duty to make a de novo

determination concerning Spears’s eligibility for disability benefits by granting

significant weight to Dr. Arcega’s opinion that Spears was not disabled also lacks

merit. The ALJ explained she credited this portion of Dr. Arcega’s opinion because

it was consistent with the overall medical evidence of record, which the ALJ

discussed to support her opinion. Therefore, Spears has not shown the ALJ

abdicated her duty to formulate an independent opinion concerning Spears’s

eligibility for disability benefits.

       The ALJ also did not err in assessing the medical evidence concerning

Spears’s mental health symptoms. The ALJ adopted the portion of examining

physician Dr. Meagher’s opinion that conformed to the other medical evidence in

the record. The ALJ reasonably discounted the results of the mental status

examination tests Dr. Meagher administered because Spears appeared to be


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exaggerating the severity of her symptoms during the exam by using a walker

when, according to Spears’s own testimony, the exam took place during a period of

time in which Spears did not need a walker. In addition, contrary to Spears’s

argument that the ALJ erred in failing to incorporate Dr. Postovoit’s opinion that

Spears’s pain could affect her sleep, and as a result affect her efficiency and ability

to focus, the ALJ explained she adopted Dr. Postovoit’s opinion on this point and

incorporated it into the residual functional capacity (“RFC”) analysis by limiting

Spears to simple, routine tasks.

      The ALJ did not err in finding not entirely credible Spear’s allegations

regarding the severity of her symptoms and functionality limitations. The ALJ

performed the required two-step analysis and explained that she discounted

Spears’s testimony because, among other reasons, there were times when Spears

appeared to exaggerate the severity of her symptoms, Spears made statements

inconsistent with her alleged symptoms, and the objective medical evidence in the

record failed to substantiate her symptoms. See Treichler v. Comm’r of Soc. Sec.

Admin., 775 F.3d 1090, 1102 (9th Cir. 2014). These constitute specific, clear, and

convincing reasons, and they furnish adequate support for discounting Spears’s

testimony. See id.; Thomas v. Barnhart, 278 F.3d 947, 960 (9th Cir. 2002); Molina

v. Astrue, 674 F.3d 1104, 1112-14 (9th Cir. 2012).


                                           4
      The ALJ also did not err in affording little weight to the lay testimony from

Spears’s husband. Even if the ALJ explained the decision to reject Mr. Spears’s

evidence with “less than ideal clarity,” any error was harmless because Mr.

Spears’s evidence “described the same limitations as [Spears’s] own testimony;”

and the ALJ’s reasons for discrediting her testimony apply “with equal force” to

Mr. Spears’s evidence. See Molina, 674 F.3d at 1121-22 (citing Alaska Dep’t of

Envtl. Conservation v. EPA, 540 U.S. 461, 497 (2004)).

      Although the ALJ did not discuss the lay witness evidence from Spears’s

former coworker, Meliah Looney, and Spears’s sister, Stacy Kaech, any error in

this omission was harmless. Spears does not explain how the ALJ omitting

discussion of Ms. Looney’s letter verifying Spears’s work ethic or Ms. Kaech’s

letter, which provides substantially the same information as Spears’s testimony,

“alters the outcome of the case” in light of “the record as a whole.” See Molina,

674 F.3d at 1115. As a result, Spears has not shown that omitting discussion of this

evidence was harmful error.

      Spears also has not demonstrated that the ALJ erred in analyzing Spears’s

RFC or finding under Step Five that there are jobs existing in significant numbers

in the national economy that Spears could perform. Spears’s allegations of error

concerning these portions of the sequential evaluation depend upon finding the


                                          5
ALJ committed harmful error in previous steps of the analysis, which Spears has

not shown.

      Finally, despite Spears’s argument that the Appeals Council erred by not

including additional evidence she submitted to the Appeals Council in the

administrative court transcript, the Court lacks jurisdiction to review the Appeals

Council’s decision about the contents of the record because such a decision is not a

final agency action. See Brewes v. Comm’r Soc. Sec. Admin., 682 F.3d 1157, 1161-

62 (9th Cir. 2012). Although the Court may instruct the Commissioner to consider

new evidence as provided under 42 U.S.C. § 405(g), which requires showing the

new evidence “is material and that there is good cause for the failure to incorporate

such evidence into the record in a prior proceeding,” Spears has not demonstrated

how the evidence at issue meets this standard.

      AFFIRMED.




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