                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             FEB 11 2020
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ANDREA L. GARNER,                                No.   19-35055

              Plaintiff-Appellant,               D.C. No. 3:17-cv-06058-MAT

 v.
                                                 MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,

              Defendant-Appellee.


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

                           Submitted February 7, 2020**
                               Seattle, Washington

Before: M. SMITH and N.R. SMITH, Circuit Judges, and TUNHEIM,*** District
Judge.




      *
             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 Honorable John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
      Andrea Garner appeals the denial of her application for Social Security

disability benefits. We have jurisdiction under 28 U.S.C. § 1291, and affirm.

      We “review the district court’s decision sustaining the [Administrative Law

Judge’s (“ALJ”)] denial of social security benefits de novo and can reverse only if

the ALJ’s findings are based on legal error or are not supported by substantial

evidence in the record.” Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 2016).

“Substantial evidence means more than a mere scintilla, but less than a

preponderance. It means such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” Revels v. Berryhill, 874 F.3d 648, 654 (9th

Cir. 2017) (quoting Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573,

576 (9th Cir. 1988)). Additionally, we “may not reverse an ALJ’s decision on

account of a harmless error.” Buck v. Berryhill, 869 F.3d 1040, 1048 (9th Cir.

2017).

1.    The ALJ did not err in evaluating the medical evidence. Contrary to

Garner’s assertions, the record shows that the ALJ considered the limitations

specified in Dr. Wingate’s testimony when determining Garner’s Residual

Functional Capacity (“RFC”). Moreover, even assuming the ALJ’s determination

was in error, Garner has not carried her burden to show that such error was

harmful. See Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).


                                          2
Indeed, Garner has failed to show how Dr. Wingate’s opinion is inconsistent with

the ALJ’s RFC assessment or should lead to a different result than that reached by

the ALJ.

      Nor did the ALJ err in finding Ms. Evans’s statement unpersuasive.

Although Ms. Evans, a mental health counselor, was not considered an

“[a]cceptable medical source[]” pursuant to the relevant regulations,1 see Molina,

674 F.3d at 1111 (first alteration in original), the “ALJ [could] give less deference

to ‘other sources’ only if the ALJ gives reasons germane to each witness for doing

so,” Revels, 874 F.3d at 655. The district court gave germane reasons for

discounting Ms. Evans’s statement. For example, the district court found Ms.

Evans’s statements unconvincing, because they were unaccompanied by treatment




      1
        At the time the ALJ issued a decision in Garner’s case, the regulations
distinguished between “[a]cceptable medical sources” and “[o]ther sources.” 20
C.F.R. § 404.1513 (2016). The relevant provisions were rescinded in 2017. See
Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg.
5,844, 5,865 (Jan. 18, 2017). All references to the Social Security Administration
regulations herein are to the 2016 regulations unless otherwise noted.

                                           3
notes.2 Additionally, substantial evidence supports the ALJ’s conclusion that the

overall record did not document depression and anxiety to the degree described by

Ms. Evans. Thus, because the ALJ gave germane reasons for finding Ms. Evans’s

statement unpersuasive, we affirm this determination.

      Finally, the ALJ did not err in giving great weight to the opinion of the non-

examining experts. Garner argues that the opinions of these experts were untimely,

because they submitted their reviews more than a year before the hearing date, thus

failing to account for evidence post-dating their opinions. Therefore, Garner posits

that the opinions of the non-examining experts should be discredited, because they

could not have considered “all of the pertinent evidence in [her] claim.” 20 C.F.R.

§ 404.1527(c)(3). However, there is always some time lapse between a

consultant’s report and the ALJ hearing and decision. The Social Security

regulations impose no limit on such a gap in time. Here, at the time the non-

examining experts issued their opinions, they had considered all the evidence



      2
        Contrary to Garner’s arguments, the ALJ had no affirmative duty to
subpoena Ms. Evans’s treatment notes. 20 C.F.R. § 404.950(d)(1) (noting that an
ALJ “may, on his or her own initiative or at the request of a party, issue
subpoenas” for information that would further develop the record (emphasis
added)). In fact, the record makes clear that the ALJ satisfied her duty to make
“every reasonable effort to help [Garner] get medical reports from [her] own
medical sources,” id. at § 404.1512(b)(1), when she made multiple requests for
records from Ms. Evans.
                                         4
before them, thus satisfying the requirements set forth in 20 C.F.R.

§ 404.1527(c)(3).

      To be sure, such a substantial delay would undoubtedly be significant if, in

the interim, the ALJ received additional medical evidence that in her opinion may

change the expert’s finding. See SSR 96-6p, 1996 WL 374180, at *3–4 (July 2,

1996). However, Garner gives no explanation as to why the gap in time is

significant and points to no subsequently obtained evidence that contradicts the

experts’ opinions. Thus, even assuming the ALJ did err in ascribing great weight

to the opinions of the non-examining experts, Garner’s arguments still fail because

she did not explain why such error was harmful. See Molina, 647 F.3d at 1111.

2.    The ALJ’s decision to discredit Garner’s testimony is supported by

substantial evidence. “The ALJ is responsible for determining credibility and

resolving conflicts in medical testimony.” Magallanes v. Bowen, 881 F.2d 747,

750 (9th Cir. 1989). In order to discredit a claimant’s testimony, the ALJ must

provide specific, cogent reasons for discrediting it. See Greger v. Barnhart, 464

F.3d 968, 972 (9th Cir. 2006). Though the ALJ identified no less than five specific

reasons for rejecting Garner’s testimony, Garner maintains that none of these

reasons are convincing. However, the ALJ properly identified in its analysis

precisely “what testimony is not credible and what evidence undermines the


                                          5
claimant’s complaints.” Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010).

Furthermore, the reasons provided by the ALJ are supported by substantial

evidence in the record. At bottom, because the ALJ provided sufficient reasoning

for rejecting Garner’s testimony, we do not second-guess its determination.

Rollins v. Massanari, 261 F.3d 853, 856–57 (9th Cir. 2001).

3.    The ALJ’s discounting of lay evidence from Shane Hedberg, Garner’s

significant other, is supported by substantial evidence. “The ALJ must consider

competent lay testimony but in rejecting such evidence, [s]he need only provide

reasons for doing so that are ‘germane to [the] witness.’” Carmickle v. Comm’r

Social Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (quoting Greger, 464 F.3d

at 972). The ALJ had adequate bases for finding Hedberg’s testimony not credible.

For example, though Hedberg stated that Garner could not lift more than five

pounds, the medical evidence suggests that Garner was only limited to lifting not

more than twenty pounds occasionally or ten pounds frequently. Because the

ALJ’s determination is supported by substantial evidence in the record, we affirm.

4.    The ALJ also properly determined Garner’s RFC. Garner argues that the

ALJ’s RFC assessment “is legally erroneous and not supported by substantial

evidence.” However, Garner’s arguments on this point do not differ from those we

rejected above. Because (as shown above) the ALJ did not err in its weighing of


                                         6
the medical evidence and Garner fails to show specifically how the RFC is

inconsistent with the medical record, the ALJ’s determination is affirmed.

5.     Garner’s arguments that the ALJ’s step five analysis was erroneous are also

unavailing. First, Garner’s argument that the vocational expert’s testimony has no

evidentiary value falls short, because (as determined above) the ALJ’s RFC

determination (upon which the hypothetical posed to the vocational expert was

based) is supported by substantial evidence. Second, even assuming Garner

correctly asserts that several of the jobs listed by the vocational expert were outside

her reasoning limitations (as detailed in the RFC), Garner concedes that there is at

least one job that satisfies the reasoning level one requirements—that of an optical

goods final assembler (DOT 713.687-018). And because there are at least 30,000

of these jobs nationally, the statutory standard is met. See Gutierrez v. Comm’r of

Soc. Sec., 740 F.3d 519, 528 (9th Cir. 2014) (noting that having 25,000 jobs in the

national economy met the statutory standard). Garner therefore does not qualify

for disability.

       AFFIRMED.




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