                                                                              FILED
                           NOT FOR PUBLICATION
                                                                               JUN 18 2018
                    UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


HEATHER M. LINDEN,                               No.    17-35209

              Plaintiff-Appellant,               D.C. No. 3:16-cv-05308-DWC

 v.
                                                 MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

              Defendant-Appellee.


                   Appeal from the United States District Court
                      for the Western District of Washington
                 J. Richard Creatura, Magistrate Judge, Presiding

                             Submitted June 6, 2018**
                               Seattle, Washington

Before: BYBEE and N.R. SMITH, Circuit Judges, and ANTOON,*** District
Judge.




      *
             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).
      ***
            The Honorable John Antoon II, United States District Judge for the
Middle District of Florida, sitting by designation.
       Heather Linden appeals the denial of her application for Social Security

Disability and Supplemental Security Income benefits. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we affirm.

       1.       After evaluating each of Linden’s arguments, we conclude that the

ALJ’s formulation of Linden’s residual functional capacity (RFC) is consistent

with the medical evidence in the record. Substantial evidence supports the ALJ’s

RFC determination indicating Linden could perform light work subject to certain

restrictions.

                a.    To assess credibility, the ALJ engaged in the required two-step

analysis outlined in Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). Citing

the statements of two of Linden’s examining physicians, the ALJ noted that Linden

exaggerated her symptoms when seeking treatment. A tendency to exaggerate is a

valid reason to discount a claimant’s testimony. Tonapetyan v. Halter, 242 F.3d

1144, 1148 (9th Cir. 2001). Thus, the ALJ offered a specific, clear, and convincing

reason for finding Linden was not entirely credible.

                b.    The ALJ did not err in evaluating the medical evidence in the

record. In general, Linden argues that the RFC determination does not account for

all of the limitations found in Linden’s medical records. However, the limitations

listed in the RFC determination need only be consistent with, rather than identical


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to, the limitations identified by a treating physician. See Turner v. Comm’r of Soc.

Sec., 613 F.3d 1217, 1223 (9th Cir. 2010). Here, the limitations that the ALJ

incorporated into Linden’s RFC are consistent with the limitations identified by the

physicians whose opinions the ALJ credited.

             c.    Linden has failed to show that the ALJ erred in evaluating the

testimony of Linden’s mother. The ALJ gave some weight to the testimony of

Linden’s mother, and Linden has not identified how the RFC determination fails to

account for her mother’s observations. In addition, Linden has not cited any

authority supporting the proposition that the ALJ was required to credit the lay

testimony of Linden’s mother to the extent it conflicted with the medical evidence

in the record. Thus, Linden has not demonstrated that the ALJ erred in evaluating

her mother’s testimony.

      2.     The Commissioner did not err in omitting from the agency record the

additional evidence provided to the Appeals Council. “[W]e do not have

jurisdiction to review a decision of the Appeals Council denying a request for

review”; however, “the administrative record includes evidence submitted to and

considered by the Appeals Council.” Brewes v. Comm’r of Soc. Sec. Admin., 682

F.3d 1157, 1161-62 (9th Cir. 2012). Thus, “when the Appeals Council considers

new evidence in deciding whether to review a decision of the ALJ, that evidence


                                          3
becomes part of the administrative record, which the district court must consider

when reviewing the Commissioner’s final decision for substantial evidence.” Id. at

1163. Here, the Appeals Council never considered the additional evidence

presented by Linden. Rather, the Appeals Council looked at the evidence,

determined it post-dated Linden’s date last insured, and decided it was not relevant.

Because the Appeals Council did not take the evidence into account in deciding to

decline review, it is not “evidence upon which the findings and decision

complained of are based.” 42 U.S.C. § 405(g). Thus, the Commissioner did not err

in omitting the evidence from the agency record.

      Furthermore, the additional medical report was based on an examination

conducted nearly four years after Linden’s date last insured, the evidence in the

report mostly duplicated other evidence in the record, and even though the ALJ did

not find that Linden’s alleged fibromyalgia was a severe impairment, the ALJ still

considered all of Linden’s symptoms in reaching her findings. Thus, any error was

harmless. See Decker v. Berryhill, 856 F.3d 659, 665 (9th Cir. 2017) (suggesting

that remand to the ALJ is required only when “the new evidence directly

undermined the basis for the ALJ’s decision”).

      AFFIRMED.




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