                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAR 11 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

KIMBERLY A. DYER,                               No.    17-35633

                Plaintiff-Appellant,            D.C. No. 3:16-cv-05733-TLF

 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
                Theresa Lauren Fricke, Magistrate Judge, Presiding

                            Submitted March 7, 2019**

Before:      FARRIS, D. NELSON, and TALLMAN, Circuit Judges

      Kimberly A. Dyer appeals the district court’s decision affirming the

Commissioner of Social Security’s denial of Dyer’s application for supplemental

security income under Title XVI of the Social Security Act. We review de novo,

Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014), and we affirm.


      *
             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 Administrative Law Judge (“ALJ”) properly rejected examining

physician Dr. Wheeler’s opinion because it was inconsistent with the longitudinal

record and because Dr. Wheeler indicated that any limitations would last less than

12 months with treatment. See Garrison, 759 F.3d at 1010 (explaining that

disability requires an impairment that is expected to last at least 12 months);

Tommasetti v. Astrue, 533 F.3d 1035, 1040 –42 (9th Cir. 2008) (concluding that

the ALJ may properly reject a treating physician opinion that is inconsistent with

other medical records). Because Dr. Sanchez’s opinion relied entirely on Dr.

Wheeler’s opinion, the ALJ reasonably rejected it for the same reasons.

      The ALJ provided several germane reasons to reject the Global Assessment

of Function (GAF) scores assigned by non-acceptable medical sources: failure to

follow through with recommended mental health treatment, lack of support by

clinical findings, and inclusion of occupational and family difficulties in assessing

the GAF scores. See Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012)

(requiring germane reasons to reject opinions from non-acceptable medical

sources); Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012) (including failure

to seek mental health treatment in reasons the ALJ properly relied on to reject a

medical opinion); Tommasetti, 533 F.3d at 1041–42 (concluding that the ALJ may

properly reject a medical opinion that is unsupported by clinical findings);

Garrison, 759 F.3d at 1002 n.4 (explaining that GAF scores include measures of


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social and occupational functioning).

      Substantial evidence supports the ALJ’s findings from the medical record

and weighing of the medical opinions, including the opinions from Dr. Heilbrunn,

Dr. Aleshire, and Dr. Brown. See Tommasetti, 533 F.3d at 1041 (“the ALJ is the

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

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

convincing reasons. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155,

1160 (9th Cir. 2008) (requiring an adverse credibility finding to be based on clear

and convincing reasons). First, the objective medical evidence showed only mild

physical and mental health impairments. See Burch v. Barnhart, 400 F.3d 676,

680 (9th Cir. 2005) (explaining that the ALJ may consider lack of supporting

medical evidence in discrediting a claimant’s subjective complaints as long as it is

not the only factor that the ALJ relies on). Second, Dyer’s activities, including

cooking, cleaning, and taking her dog for walks were inconsistent with her alleged

physical limitations. See Molina, 674 F.3d at 1112–13 (9th Cir. 2012) (including

inconsistency with daily activities in reasons the ALJ may rely upon to discredit

claimant testimony). Third, Dyer’s testimony that she continued to look for work

was inconsistent with her testimony as to total disability. See Bray v. Comm’r,

Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (reasoning that the

claimant’s job searches were inconsistent with her testimony as to disability).


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Fourth, Dyer failed to seek treatment for her mental health impairments or left

knee until shortly before her hearing, and no medical evidence in the record

supports a conclusion that her failure to seek treatment was due to her mental

impairments. See Molina, 674 F.3d at 1114 (explaining that the ALJ properly

rejected claimant testimony because the claimant failed to seek treatment and there

was no medical evidence that any failure was attributable to the claimant’s mental

impairments). Any error in relying on additional reasons to discredit Dyer’s

testimony was harmless. See Carmickle, 533 F.3d at 1162 (reasoning that error in

relying on improper reasons to discredit claimant testimony was harmless because

substantial evidence supported the ALJ’s reasoning and credibility determination).

      Dyer waived any challenge to the ALJ’s rejection of lay testimony by failing

to sufficiently argue the issue in her opening brief. See Carmickle, 533 F.3d at

1161 n.2 (“we ordinarily will not consider matters on appeal that are not

specifically and distinctly argued in an appellant’s opening brief” (internal

quotation and citation omitted)).

      The residual functional capacity assessment and hypothetical posed to the

vocational expert were supported by substantial evidence and reasonably included

all limitations for which there was record support. See Bayliss v. Barnhart, 427

F.3d 1211, 1217 (9th Cir. 2005).

      AFFIRMED.


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