                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 29 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

CATHLEEN R. BROWN,                              No.    17-35232

                Plaintiff-Appellant,            No. C16-5244-JPD

 v.                                             MEMORANDUM*

NANCY A. BERRYHILL, Acting
Commissioner Social Security,

                Defendant-Appellee.

                   Appeal from the United States District Court
                     for the Western District of Washington
                  James P. Donohue, Magistrate Judge, Presiding

                             Submitted May 24, 2018**

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

      Cathleen R. Brown appeals the district court’s judgment affirming the

Commissioner of Social Security’s denial of her application for supplemental

security income under Title II of the Social Security Act. We have jurisdiction

under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We review the district court’s


      *
             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).
order de novo and the agency’s decision for substantial evidence and legal error.

Molina v. Astrue, 674 F.3d 1104, 1110-11 (9th Cir. 2012). We affirm.

      The ALJ did not err in evaluating Brown’s testimony. The ALJ proffered

specific, clear, and convincing reasons, supported by substantial evidence, for

discounting portions of Brown’s testimony. See Trevizo v. Berryhill, 871 F.3d 664,

679 (9th Cir. 2017) (ALJ must provide specific, clear, and convincing reasons for

rejecting the claimant’s testimony about the severity of her symptoms); see also

Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (“Where evidence is

susceptible to more than one rational interpretation, the ALJ’s decision should be

upheld.” (citation and internal quotation marks omitted)); Bray v. Comm’r Soc.

Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (finding no error where the ALJ

considered inconsistencies between the claimant’s testimony and objective medical

evidence as one of many reason for discounting the testimony). Even if the ALJ

erred by discounting Brown’s testimony based on her failure to seek treatment, any

error was harmless because the ALJ provided other valid reasons for discounting

the testimony and substantial evidence supports the ALJ’s conclusions. See

Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008)

(explaining harmless error analysis); Orn v. Astrue, 495 F.3d 625, 636-38 (9th Cir.

2007) (although an ALJ may discount a claimant’s testimony based on a failure to

seek treatment, the failure must be “unexplained, or inadequately explained” and



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“disability benefits may not be denied because of the claimant’s failure to obtain

treatment [s]he cannot obtain for lack of funds”).

      Brown’s omission of additional testimony concerning her sleep apnea does

not demonstrate that the ALJ neglected her duty to fully and fairly develop the

record. See Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) (claimant

bears the burden of proving disability; “An ALJ’s duty to develop the record

further is triggered only when there is ambiguous evidence or when the record is

inadequate to allow for proper evaluation of the evidence.”).

      Even if the ALJ erred by failing to provide substantial evidentiary support

for discounting lay witness testimony by Brown’s husband, Peter Brown, any error

was harmless because the testimony described substantially similar limitations as

Brown’s testimony, and the “ALJ’s reasons for rejecting [Brown’s] testimony

apply with equal force to the lay testimony.” Molina, 674 F.3d at 1122.

      The ALJ did not err in formulating Brown’s RFC by failing to include in the

hypothetical to the vocational expert restrictions that Brown’s attorney added when

questioning the vocational expert. See Magallanes v. Bowen, 881 F.2d 747, 756-57

(9th Cir. 1989) (“The ALJ is not bound to accept as true the restrictions presented

in a hypothetical question propounded by a claimant’s counsel. Rather, the ALJ is

free to accept or reject those restrictions as long as they are supported by

substantial evidence.” (citation and internal quotation marks omitted)). Having



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determined that Brown was not disabled, the ALJ was not obligated to proceed to

Step Five. See Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010).

      We decline to address Brown’s contention that the ALJ’s analysis of

Brown’s testimony about fibromyalgia symptoms violated Social Security Ruling

12-2p because Brown failed to argue this issue with any specificity in her briefing.

See Carmickle, 533 F.3d at 1161 n.2.

      AFFIRMED.




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