                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                         JUL 6 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ANDREW A. HIGGINS,                              No.    14-35941

                Plaintiff-Appellant,            D.C. No. 3:13-cv-05987-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 June 30, 2017**


Before:      NELSON, TROTT, and OWENS, Circuit Judges

      Andrew Higgins appeals the district court’s decision reversing the

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

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



      *
             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).
Social Security Act. The district court remanded to the Commissioner, with

instructions for the administrative law judge (ALJ) to consider the medical opinion

of Dr. Bowes and if necessary to reconsider Higgins’s impairments, residual

functional capacity, and ability to perform jobs that exist in significant numbers in

the national economy. On appeal, Higgins contends that the ALJ made additional

legal errors which must be corrected prior to remand. We have jurisdiction under

28 U.S.C. § 1291. We review de novo, Ghanim v. Colvin, 763 F.3d 1154, 1159

(9th Cir. 2014), and we affirm.

      The ALJ provided specific and legitimate reasons to give less than full

weight to the opinion of Dr. Heilbrunn. Lester v. Chater, 81 F.3d 821, 830-31 (9th

Cir. 1995). (1) Dr. Heilbrunn’s opinion was inconsistent with other evidence in the

record. See Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601-02 (9th Cir.

1999). (2) Dr. Heilbrunn’s opinion was inconsistent with Higgins’s activities. See

Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001). Any error in relying on

additional reasons was harmless. Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir.

2012).

      The ALJ identified several specific, clear and convincing reasons that are

supported by substantial evidence for not giving full weight to Higgins’s testimony

regarding the debilitating effects of his symptoms. Burrell v. Colvin, 775 F.3d

1133, 1136 (9th Cir. 2014). (1) Medical records showed that Higgins exaggerated



                                          2                                    14-35941
his symptoms. See Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). (2)

Medical records of conservative pain treatment were inconsistent with the alleged

severity of symptoms. See Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007)

(explaining that the ALJ properly discredited claimant testimony regarding the

severity of symptoms when that testimony was inconsistent with a conservative

treatment record). (3) Higgins’s testimony was inconsistent with objective medical

evidence. See Tonapetyan, 242 F.3d at 1148. (4) Higgins’s ability to complete

college courses provided evidence of activities that are transferrable to a work

setting. See Molina, 674 F.3d at 1113 (finding that the ALJ properly rejected

claimant testimony as inconsistent with her level of activities). Because it was

already remanding the case, the district court instructed the ALJ to remedy any

error in relying on additional reasons to reject Higgins’s testimony on remand. The

Commissioner concurred with that order.

      The ALJ properly relied on inconsistency with the medical record and

inconsistency with Higgins’s reported level of activity as germane reasons to reject

the lay witness testimony of Miranda Higgins. See Bayliss v. Barnhart, 427 F.3d

1211, 1218 (9th Cir. 2005). Any error in relying on additional reasons was

harmless. See Molina, 674 F.3d at 1122.

      The ALJ included in the residual functional capacity (“RFC”) assessment all

the physical limitations that were supported by, and consistent with, substantial



                                          3                                     14-35941
evidence in the record. See Bayliss, 427 F.3d at 1217.

      Neither party contests the district court’s remand order, requiring the ALJ to

consider the medical opinion of Dr. Bowes, and if necessary reassess Higgins’s

impairments, limitations, and ability to perform additional work. Aside from Dr.

Bowes’s opinion, substantial evidence supports the ALJ’s resolution of ambiguities

in the medical record regarding Higgins’s mental impairments. See Batson v.

Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).

      Despite the ALJ’s legal error in failing to consider Dr. Bowes’s opinion,

crediting the evidence as true is inappropriate because there are outstanding issues

that must be resolved before a determination of disability can be made. See

Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1093 (9th Cir. 2014).

      AFFIRMED.




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