                                                                            FILED
                           NOT FOR PUBLICATION
                                                                              OCT 12 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


NATALEE ANN RICHARDS,                            No. 15-35614

              Plaintiff-Appellant,               D.C. No. 3:14-cv-05823-MAT

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

              Defendant-Appellee.


                   Appeal from the United States District Court
                     for the Western District of Washington
                  Mary Alice Theiler, Magistrate Judge, Presiding

                            Submitted October 6, 2017**
                               Seattle, Washington

Before: WARDLAW, CLIFTON, and OWENS, Circuit Judges.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

      **     The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
      Natalee Richards appeals the district court’s decision affirming the denial of

her application for disability insurance benefits under Title II of the Social Security

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

1.    The administrative law judge (“ALJ”) did not commit reversible error in

finding Ms. Richards’ testimony not credible. An ALJ may use ordinary techniques

of credibility evaluation, such as considering any inconsistent statements in a

claimant’s testimony. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001).

Ms. Richards gave false testimony in the context of her disability hearings. She

also reported physical limitations that were contradicted by the observations of an

investigator. The ALJ found Ms. Richards to be highly motivated to obtain social

security benefits, and he explained that her subjective complaints were inconsistent

with the medical record.

2.    The ALJ did not err by giving little weight to the opinions of Ms. Richards’

treating and examining physicians. Drs. Landy and Sacks were treating physicians,

and their opinions were contradicted by two non-examining physicians. If an ALJ

rejects a treating or examining physician’s opinion that is contradicted by another

doctor, he must provide specific, legitimate reasons based on substantial evidence

in the record. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 692 (9th

Cir. 2009). The ALJ discounted the opinions of Drs. Landy and Sacks because they


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relied heavily on Ms. Richards’ self-report of symptoms, which the ALJ found to

be not credible. The opinions of Landy and Sacks were also found to be

inconsistent with their own treatment notes and with contemporaneous

examinations. Accordingly, the ALJ provided specific, legitimate reasons, based

on substantial evidence, for discounting the opinions of Drs. Landy and Sacks.

      Dr. Griffin was an examining psychologist, and her opinion was not

contradicted by another mental health practitioner. If an ALJ rejects an examining

physician’s opinion that is not contradicted by another doctor, the ALJ must

provide clear and convincing reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir.

1996). The ALJ discounted Dr. Griffin’s opinion because she relied on Ms.

Richards’ self-report of symptoms, which the ALJ found not credible. The ALJ

evaluated Ms. Richards using the four broad functional areas set out in the

disability regulations for evaluating mental disorders. He also considered Ms.

Richards’ testimony that her mental health problems would not interfere with her

ability to work. Thus, the ALJ provided clear and convincing reasons for

discounting Dr. Griffin’s opinion.

3.    The ALJ did not err by giving great weight to the evidence and testimony

submitted by the Cooperative Disability Investigations Unit (“CDIU”). The Social

Security Administration does acknowledge some errors on the part of CDIU. But


                                         3
an error is harmless when, considering the record as a whole, the error did not

affect the ALJ’s ultimate disability determination. Molina v. Astrue, 674 F.3d

1104, 1115 (9th Cir. 2012). Even if Ms. Richards is correct about the purported

errors, she does not challenge a number of the investigator’s other observations,

nor does she challenge the testimony of two of the witnesses. These observations

and this testimony were consistent with the opinions of the two impartial

physicians. Accordingly, the asserted errors were harmless because they would not

have changed the ALJ’s ultimate disability determination.

4.    The ALJ did not err by finding that Ms. Richards’ knee pain and mental

health impairments were not severe at step two. Even though he found these

impairments not severe, the ALJ was required to evaluate Ms. Richards’ knee and

mental health impairments in analyzing residual functional capacity (“RFC”). See

U.S. Soc. Sec. Admin., Ruling No. 96-8p, Titles II and XVI: Assessing Residual

Functional Capacity in Initial Claims, 61 Fed. Reg. 34,474, 34,477 (July 2, 1996).

The ALJ did analyze Ms. Richards’ knee and mental health impairments at the

RFC stage, so the step two analysis did not affect the overall disability

determination. Furthermore, the ALJ provided substantial evidence to support his

step two findings, as required by law. See Webb v. Barnhart, 433 F.3d 683, 687

(9th Cir. 2005).


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5.    The ALJ did not err in assessing Ms. Richards’ subjective symptom and pain

testimony. When a claimant presents objective evidence of an underlying

impairment, and there is no evidence of malingering, the ALJ can reject the

claimant’s testimony about the severity of her symptoms only by offering specific,

clear and convincing reasons for doing so. Lingenfelter v. Astrue, 504 F.3d 1028,

1036 (9th Cir. 2007). The ALJ discounted Ms. Richards’ subjective symptom and

pain testimony because: 1) he found her not credible, 2) she was observed

engaging in activities in contradiction of her self-reported abilities, 3) she

demonstrated significant motivation to obtain social security benefits, and 4) her

subjective complaints were inconsistent with the medical record. Thus, the ALJ

provided clear and convincing reasons for rejecting Ms. Richards’ testimony

regarding her pain symptoms.

6.    The ALJ did not err in assessing Ms. Richards’ residual functional capacity.

In arguing that the ALJ erred at the RFC stage, Ms. Richards re-states her

arguments regarding her knee pain, mental health, and the opinions of her

examining and treating physicians. Those arguments are resolved above. Ms.

Richards also argues that the ALJ did not consider her fibromyalgia pain. Given

that the ALJ found Ms. Richards’ pain allegations to be not credible, he was not




                                            5
required to conduct a function-by-function analysis based on fibromyalgia. See

Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005).

      AFFIRMED.




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