                           NOT FOR PUBLICATION                              FILED
                    UNITED STATES COURT OF APPEALS                          DEC 26 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

CHAREL LYNN FISHER,                             No.    16-35235

                Plaintiff-Appellant,            D.C. No. 3:15-cv-05507-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 December 20, 2017**


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

      Charel Fisher appeals the district court’s decision affirming the

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

insurance benefits under Title II of the Social Security Act. We have jurisdiction



      *
             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).
under 28 U.S.C. § 1291. We review de novo, Rounds v. Comm’r of Soc. Sec.

Admin., 807 F.3d 996, 1002 (9th Cir. 2015), and we affirm.

       By failing to raise the issue before the district court, Fisher waived her

challenge to the determination by the Administrative Law Judge (ALJ) that

Fisher’s testimony was not entirely credible. See Greger v. Barnhart, 464 F.3d

968, 973 (9th Cir. 2006). Because credibility is not purely an issue of law, no

exception applies. Id. (explaining that this Court can still review an issue despite

failure to raise it at the district court when it is purely one of law).

       The record supports the ALJ’s observation that Dr. Ballard’s December

2012 opinion does not indicate limitations that would last more than 12 months.

This fact supports the ALJ’s decision to give her opinion “little weight.” Garrison

v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014) (explaining that disability requires an

impairment that is expected to last at least 12 months).

       The ALJ properly assigned “little weight” to Dr. Ballard’s November 2013

opinion because (1) it depended upon subjective complaints not supported by

physical findings and imaging studies, and (2) her diagnosis of fibromyalgia was

not backed by objective clinical findings. See Tommasetti v. Astrue, 533 F.3d 1035,

1041 (9th Cir. 2008) (concluding that the ALJ properly rejected a treating

physician’s opinion that was inconsistent with objective medical evidence); Bayliss

v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (including inadequate support by


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clinical findings as a reason that the ALJ can rely upon to reject a treating

physician’s opinion).

      Taking into account the evidence considered by the Appeals Council,

substantial evidence does not support the ALJ’s additional reasons for rejecting Dr.

Ballard’s November 2013 opinion involving the continuity of her treatment, but

any error was harmless, because the ALJ provided other specific and legitimate

reasons supported by substantial evidence for rejecting Dr. Ballard’s opinion. See

Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012)

(concluding that evidence considered by the Appeals Council is part of the record

that this Court must review in determining whether substantial evidence supports

the ALJ’s opinion); Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)

(holding that error is harmless when it is inconsequential to the ultimate

nondisability determination).

      The ALJ properly rejected the more severe limitations in Dr. Irwin’s opinion

based on inconsistencies with objective medical evidence of unremarkable mental

status examinations. The Residual Functional Capacity (RFC) reasonably

incorporated the limitations in the portions of Dr. Irwin’s opinion that the ALJ

credited. See Tommasetti, 533 F.3d at 1041 (explaining that the ALJ can properly

reject a medical opinion that is inconsistent with the medical record); Stubbs-

Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (affirming the ALJ’s


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assessment of the RFC based on the medical evidence).

      The RFC reasonably incorporated Dr. Donahue’s opinion regarding Fisher’s

“rumination” when experiencing pain, and that she would have some difficulty

with workplace stress. See Stubbs-Danielson, 539 F.3d at 1174.

      The ALJ properly weighed the remaining medical evidence, and substantial

evidence supports the ALJ’s conclusions. See Tommasetti, 533 F.3d at 1041

(concluding that the ALJ is responsible for resolving conflicts in the medical

evidence).

      While the lay witnesses each described their personal observations of Fisher,

substantial evidence supports the ALJ’s reasoning that their opinions regarding

Fisher’s specific functional limitations relied on Fisher’s self-descriptions. See

Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009)

(reasoning that the ALJ provided a germane reason to reject lay testimony because

it was substantially similar to the claimant’s own subjective complaints); Batson v.

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

when more than one interpretation of the evidence is plausible this Court should

defer to the ALJ).

      The ALJ properly included in the RFC and the hypothetical to the

Vocational Expert (VE) all limitations that were supported by substantial evidence.

See Stubbs-Danielson, 539 F.3d at 1174-76 (concluding that the claimant fails to


                                          4                                      16-35235
raise a fresh issue based on the RFC and VE testimony by restating earlier

arguments about the medical evidence).

      AFFIRMED.




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