                             NOT FOR PUBLICATION                         FILED
                       UNITED STATES COURT OF APPEALS                    SEP 14 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT



    DEBORAH ANN RODRIGUEZ,                        No.   16-15252

                       Plaintiff-Appellant,       D.C. No. 2:15-CV-00231-CKD

      v.                                          MEMORANDUM*

    NANCY A. BERRYHILL,
    ACTING COMMISSIONER OF SOCIAL
    SECURITY,

                       Defendant-Appellee.

                     Appeal from the United States District Court
                          for the Eastern District of California
                    Carolyn K. Delaney, Magistrate Judge, Presiding

                            Submitted September 12, 2017**
                               San Francisco, California

Before: SILER,*** TALLMAN, and BEA, Circuit Judges.

           Deborah Rodriguez appeals from the district court’s order granting 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).
***
      The Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth
Circuit, sitting by designation.
Commissioner of Social Security’s motion for summary judgment. The district

court’s order denying benefits under the Social Security Act is reviewed de novo.

This court may set aside the denial of benefits if the agency’s decision is legally

erroneous or lacks findings supported by substantial evidence. Smolen v. Chater, 80

F.3d 1273, 1279 (9th Cir. 1996). “Substantial evidence” means “more than a

scintilla but less than a preponderance…Substantial evidence is such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.” Id.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm because substantial

evidence supports the findings by the administrative law judge (ALJ) that Rodriguez

was not disabled under the Social Security Act.

       1. Plaintiff’s status as obese and her impairments from that condition do not

entitle her to social security benefits. See Social Security Final Rule, 64 Fed. Reg.

46122 (Aug. 24, 1999) (deleting Listing 9.09, which listed obesity as an

impairment). Plaintiff did not assert that she had an impairment that, in combination

with obesity, met a particular listing in the Listing of Impairments, 20 C.F.R. Part

404, Subpart P, Appendix 1, or show that she satisfied the requirements for such a

listing.1


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      Plaintiff’s arguments that her impairments met Listings 1.02 and 1.04 are
waived because she failed to raise them before the district court. See Greger v.
Barnhart, 464 F.3d 968, 973 (9th Cir. 2006) (in appeal of district court’s decision
affirming Commissioner of Social Security’s denial of application for social


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      2. The ALJ properly considered the impact of plaintiff’s obesity because he

assigned “great weight” to Dr. Shahid Ali’s medical opinion, which diagnosed

Plaintiff with obesity and rendered a residual functional capacity (RFC) opinion

based on, among other things, that diagnosis.

      3. The ALJ did not err in assessing Plaintiff’s functional limitations on a

“function-by-function” basis. The ALJ determined that Plaintiff cannot climb

ladders, ropes, and scaffolds, but otherwise defined Plaintiff’s RFC as able to do

“light work,” and cited the regulations defining “light work,” 20 C.F.R. §§

404.1567(b), 416.967(b), regulations which include well-defined function-by-

function parameters. See Social Security Ruling (SSR) 96-8p, 61 Fed. Reg. 34474

(July 2, 1996). As a result, the ALJ set forth a function-by-function assessment.

Buckner-Larkin v. Astrue, 450 F. App’x 626, 627 (9th Cir. 2011) (claimant argued

that residual functional capacity was incorrectly determined because ALJ did not put

forward function-by-function assessment. ALJ’s determination that claimant had

residual functional capacity to perform “sedentary work” pursuant to 20 C.F.R. §

404.1567(a) was sufficient, as the definition of “sedentary [work]…includes well-

defined function-by-function parameters.”).

      4. The ALJ did not err in weighing the medical opinion evidence. He properly


security disability benefits, claimant’s argument that the ALJ erred by failing to
develop record was waived because claimant did not make said argument before
the district court).

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assigned great weight to Dr. Ali’s medical opinion because that opinion was

consistent with the record evidence and was based on Dr. Ali’s direct examination,

personal observations, and objective testing of Plaintiff. The ALJ gave specific and

legitimate reasons supported by substantial evidence for discounting Plaintiff’s

proffered treating-source opinions because, among other things, they were

conclusory, unsupported by the record, inconsistent with Plaintiff’s own statements

about her functional ability, and relied heavily on Plaintiff’s own subjective

reporting of her symptoms. Thus, it was within the ALJ’s prerogative to discount

those opinions and decline to give them controlling weight. See Connett v. Barnhart,

340 F.3d 871, 874 (9th Cir. 2003) (“the ALJ can reject the opinion of a treating

physician in favor of the conflicting opinion of another examining physician if the

ALJ makes findings setting forth specific, legitimate reasons for doing so that are

based on substantial evidence in the record”) (internal citations omitted). Even if

the ALJ erred in stating that the record did not contain treatment notes from one of

the treating sources, that error was harmless because the ALJ also gave separate

reasons for rejecting the opinion. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th

Cir. 2012) (“[w]e have long recognized that harmless error principles apply in the

Social Security Act context.”).

      5. The ALJ gave specific, clear, and convincing reasons for finding that

Plaintiff’s testimony was not credible because it conflicted with her previously


                                         4
reported daily activities, it was inconsistent with the medical evidence in the record,

her condition and pain were controlled with medication, and her testimony was

undermined by the relatively conservative treatment she received for her allegedly

debilitating impairments. See Molina, 674 F.3d at 1112–14.

      6. The ALJ provided specific, clear, and convincing reasons for discounting

Plaintiff’s daughter’s lay testimony about Plaintiff’s daily activities because it

described the same limitations as Plaintiff’s own testimony. See id. at 1122.

      Plaintiff shall bear all costs of appeal. See Fed. R. App. P. 39(a)(2).

      AFFIRMED.




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