                           NOT FOR PUBLICATION                           FILED
                                                                          NOV 29 2016
                    UNITED STATES COURT OF APPEALS
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT


MARIA GUTIERREZ,                                 No. 14-35231

             Plaintiff - Appellant,              D.C. No. 3:13-cv-00448-MO

    v.
                                                 MEMORANDUM*
CAROLYN COLVIN, Acting
Commissioner of Social Security,

             Defendant - Appellee.


                  Appeal from the United States District Court
                           for the District of Oregon
                  Michael W. Mosman, District Judge, Presiding

                        Argued and Submitted July 7, 2016
                                Portland, Oregon

Before: Carlos T. Bea and John B. Owens, Circuit Judges and Larry A. Burns,**
District Judge.




*
  This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
  The Honorable Larry A. Burns, District Judge for the U.S. District Court for the
Southern District of California, sitting by designation.
      Maria Gutierrez appeals from the district court’s judgment affirming the

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

insurance benefits under Title II of the Social Security Act. This memorandum

addresses issues not addressed in the contemporaneously filed opinion. The parties

know the facts, so we do not recite them here. We have jurisdiction under 28

U.S.C. § 1291, and we affirm. 1

      We review de novo a district court’s judgment upholding an administrative

law judge’s (“ALJ”) denial of social security benefits. Ghanim v. Colvin, 763 F.3d

1154, 1159 (9th Cir. 2014). We reverse only if the ALJ’s decision is not supported

by substantial evidence in the record or is based on legal error. Id.

      The ALJ did not err in discrediting Gutierrez’s testimony. He specifically

acknowledged Gutierrez’s testimony – that she is disabled and unable to sustain

full-time work because of her injury – before citing specific evidence that

undermined her testimony. See Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d

1090, 1102 (9th Cir. 2014). The ALJ discussed Gutierrez’s daily activities and

post-injury work, and concluded that they suggested a higher level of functioning

than she alleged in her disability application and testimony. He discussed



1
 Gutierrez withdrew her request for judicial notice in light of our decision in
Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996 (9th Cir. 2015). We therefore
do not consider it.
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Gutierrez’s post-injury job search activity, and concluded that it showed that she

knows her limitations and believes she can work despite them. The ALJ also relied

on Gutierrez’s nominal effort during a physical diagnostic examination and her

report that Ibuprofen and Tylenol controlled her pain. These were specific, clear,

and convincing reasons for rejecting Gutierrez’s claim that she is disabled as a

result of her injury. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227

(9th Cir. 2009); Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007).

      Even assuming the ALJ erred in failing to acknowledge Gutierrez’s claim

that she required mid-day naps as a result of her pain medication, any error was

harmless. Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1991) (affirming denial

of benefits notwithstanding erroneous factual finding because error was

“immaterial” to the ultimate disability determination). The ALJ’s finding that

Gutierrez exaggerated the severity of her pain was supported by specific and

convincing evidence. This evidence also undercut the basis for Gutierrez’s

claimed need to take medication that allegedly caused her drowsiness. If Gutierrez

did not need to take the medication, any error in failing to consider the side effects

of the unnecessary medication was harmless.

      AFFIRMED.




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