                           NOT FOR PUBLICATION                             FILED
                    UNITED STATES COURT OF APPEALS                         APR 23 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

LYNNETTE E. GREEN,                              No.    15-35694

                Plaintiff-Appellant,            D.C. No. 2:14-cv-01487-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 April 19, 2018**


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

      Lynnette Green appeals the district court’s decision affirming the

Commissioner of Social Security’s denial of Green’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. We have jurisdiction 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.

      We cannot review the ALJ’s determination that the relevant period for this

application began on June 19, 2009, because the ALJ decided not to reopen

Green’s previous disability denial. See Klemm v. Astrue, 543 F.3d 1139, 1144-45

(9th Cir. 2008) (concluding that we cannot review the ALJ’s decision not to open a

prior disability denial unless there is a colorable constitutional claim of a due

process violation). Green does not argue in her opening brief that we have

jurisdiction to consider the ALJ’s refusal to reopen her prior claim because it raises

a colorable constitutional claim of denial of due process. See Carmickle v.

Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (explaining

that we will not address issues that are not specifically raised in the opening brief).

The ALJ was not required to discuss earlier evidence that was not probative of

Green’s condition during the relevant period for this application. See Hiler v.

Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (explaining that the ALJ does not need

to discuss evidence that is neither significant nor probative).

      The ALJ provided several specific and legitimate reasons to reject the

opinion of treating physician Dr. Sargent, including that the opinion predated the

relevant period, that Green’s activities were inconsistent with the opinion, and that


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a gap in treatment was inconsistent with the alleged severity of Green’s limitations.

See Ghanim v. Colvin, 763 F.3d 1154, 1161-62 (9th Cir. 2014) (including

frequency of examination and inconsistency with claimant’s activities in the

factors that the ALJ may consider in weighing a treating physician’s opinion);

Carmickle, 533 F.3d at 1165 (concluding that medical opinions that predate the

relevant period are of limited relevance). Any error in relying on additional

reasons was harmless. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)

(explaining that error is harmless if it is inconsequential to the ultimate

nondisability determination).

      The ALJ properly rejected Dr. Herman’s opinion based on specific and

legitimate reasons, including lack of clinical support for Dr. Herman’s opinion

prior to March 2011, inconsistency with the treatment record, and inconsistency

with Green’s activities. See Ghanim, 763 F.3d at 1161-62 (inconsistency with the

treatment record and with claimant’s activities); Bray v. Comm’r of Soc. Sec.

Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (inadequate support from clinical

findings). Any error in relying on additional reasons is harmless. See Molina, 674

F.3d at 1115.

      The ALJ provided germane reasons to reject the opinion of Physician’s

Assistant Ms. Ellis, including inconsistency with Green’s activities and

inconsistency with Green’s own testimony regarding her pain levels. See


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Carmickle, 533 F.3d at 1164 (inconsistency with claimant’s activities is a germane

reason to reject lay testimony); Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001)

(inconsistency with the claimant’s own testimony is a germane reason to reject lay

testimony).

      The ALJ properly rejected Dr. Moore’s opinion based on specific and

legitimate reasons, including inconsistency with Dr. Moore’s own clinical findings

and inconsistency with the treatment record. See Tommasetti v. Astrue, 533 F.3d

1035, 1041 (9th Cir. 2008) (concluding that the ALJ properly rejected a treating

physician’s opinion based on inconsistencies with the medical record and

inconsistencies with the treating physician’s own treatment notes). Any error in

relying on additional reasons is harmless. See Molina, 674 F.3d at 1115.

      The ALJ provided specific and legitimate reasons to reject Dr. Washburn’s

opinion, including inconsistency with Dr. Washburn’s own mental status

examination findings, inconsistency with Green’s activities, and inconsistency with

other evidence in the medical record. See Ghanim, 763 F.3d at 1162

(inconsistency with the claimant’s activities and other evidence in the record);

Tommasetti, 533 F.3d at 1041 (inconsistency between a physician’s opinion and

treatment notes).

      The ALJ properly rejected Ms. Falsetto’s opinion as inconsistent with the

medical record. See Molina, 674 F.3d at 1112 (concluding that inconsistency with


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other medical records is a germane reason to reject the opinion of a non-acceptable

medical source).

      Green waived the issue of whether the ALJ erred by concluding that her

carpal tunnel syndrome was non-severe based on Dr. Riel’s opinion by failing to

raise it before the district court. Ghanim, 763 F.3d at 1160 (concluding that the

claimant waived an issue by failing to raise it before the district court).

      The ALJ properly incorporated all relevant limitations from Dr. Gaffield and

Dr. Pepka’s opinions into the residual functional capacity (RFC). See Stubbs-

Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (concluding that the ALJ

does not err in assessing the RFC when the ALJ reasonably includes all limitations

supported by the medical record).

      Substantial evidence supports the ALJ’s review of the opinions of Dr. Choi

and Dr. Fligstein. See Tommasetti, 533 F.3d at 1041 (explaining that “the ALJ is

the final arbiter with respect to resolving ambiguities” in the medical record).

      The ALJ properly discredited Green’s testimony based on clear and

convincing reasons supported by substantial evidence. Green’s testimony was

inconsistent with the objective medical evidence, Green’s testimony was

inconsistent with her daily activities, and the alleged severity of Green’s symptoms

was inconsistent with conservative and routine treatment. See Tommasetti, 533

F.3d at 1039-40 (concluding that the ALJ properly discredited claimant testimony


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based on inconsistencies with the objective medical evidence and a conservative

treatment record); Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (explaining

that the ALJ properly rejected claimant testimony based on inconsistencies with

the claimant’s activities). The ALJ did not err by failing to make findings

regarding transferability of Green’s activities to work. See Orn, 495 F.3d at 639

(explaining that the ALJ can properly discredit claimant testimony either because

the claimant’s activities are inconsistent with the claimant’s other testimony or

because the activities show skills that are transferrable to work). Any error in

relying on additional reasons is harmless. See Bray, 554 F.3d at 1227 (concluding

that the ALJ’s error in relying on invalid reasons to discredit claimant testimony

was harmless because the ALJ also provided other clear and convincing reasons to

discredit claimant testimony).

      The ALJ properly include all limitations supported by substantial evidence

in the RFC and the hypothetical posed to the vocational expert, and Green fails to

raise any additional issue by restating her arguments regarding the ALJ’s

assessment of the medical record. Stubbs-Danielson, 539 F.3d at 1175-76.

      AFFIRMED.




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