                           NOT FOR PUBLICATION                           FILED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

JULIE A. SOLER AMOR,                            No.    16-35254

                Plaintiff-Appellant,            D.C. No. 3:14-cv-01526-TC

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

                Defendant-Appellee.

                   Appeal from the United States District Court
                             for the District of Oregon
                   Michael J. McShane, District Judge, Presiding

                     Argued and Submitted November 9, 2018
                                Portland, Oregon

Before: TALLMAN and IKUTA, Circuit Judges, and BOUGH,** District Judge.

      Julie Soler Amor appeals the district court’s decision affirming the

Commissioner of Social Security’s denial of Soler Amor’s application for social

security supplemental security income under Title XVI of the Social Security Act.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri, sitting by designation.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Ghanim v.

Colvin, 736 F.3d 1154, 1159 (9th Cir. 2014), and we affirm.

      This Court lacks jurisdiction to review the Appeals Council’s decision to

deny “a request for review of an ALJ’s decision, because the Appeals Council

decision is a non-final agency action.” Brewes v. Comm’s of Soc. Sec. Admin., 682

F.3d 1157, 1161 (9th Cir. 2012). Although we may review evidence submitted to

and considered by the Appeals Council as part of the administrative record, id. at

1162, here the Appeals Council only looked at the evidence, and determined it did

not meet the standard for consideration, see 20 C.F.R. § 416.1470(b)(1987) (stating

that “if new and material evidence is submitted, the Appeals Council shall consider

the additional evidence only where it relates to the period on or before the date of

the administrative law judge hearing decision”) (current version at 20 C.F.R. §

416.1470(b)( (2018). Therefore, the new evidence did not become part of the

record, and we may not consider it. Lowry v. Barnhart, 329 F.3d 1019, 1024 (9th

Cir. 2003).

      Soler Amor’s argument that the ALJ erred in evaluating the medical

evidence and conducting a residual functional capacity assessment fails because

the argument is premised on the new medical evidence submitted to but not

considered by the Appeals Council, which is not part of the administrative record

before this Court.


                                          2                                    16-35254
      Soler Amor argues that this Court should retroactively apply Social Security

Ruling 16-3p, which supersedes a prior Social Security Ruling addressing

credibility. This Court has recognized that SSR 16-3p “makes clear what our

precedent already required,” Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir.

2017). Here, the ALJ’s reasoning satisfies SSR 16-3p and this Court’s precedent.

      The ALJ identified specific, clear and convincing reasons that are supported

by substantial evidence for discounting Soler Amor’s testimony regarding the

debilitating effects of her symptoms: (1) she lacked motivation to work; (2) there

were inconsistencies between her subjective complaints and activities of daily

living; and (3) her subjective complaints are not consistent with the medical

evidence. See Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (affirming an

ALJ’s determination the claimant’s little propensity to work “negatively affected

her credibility regarding her inability to work”); Molina v. Astrue, 674 F.3d 1104,

1112 (9th Cir. 2012) (listing among proper considerations for credibility

assessment an engagement in activities of daily living that are inconsistent with the

alleged symptoms); Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005) (holding

that an ALJ can consider a lack of supporting medical evidence when assessing

credibility). The ALJ incorrectly discounted her testimony on the basis that her

substance abuse and drug-seeking behavior contributed to her condition, but this

was harmless error because the ALJ gave several other specific, clear and


                                          3                                     16-35254
convincing reasons. See Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1197

(9th Cir. 2004) (concluding that error was harmless even if the record did not

support one of the ALJ’s stated reasons for disbelieving a claimant’s testimony).

      The ALJ properly gave limited weight to case manager Mr. O’Neill’s

testimony because he infrequently met with Soler Amor. The ALJ reasonably

inferred that his testimony lacked foundation. Crane v. Shalala, 76 F.3d 251, 254

(9th Cir. 1995) (holding that lay witnesses must have sufficient contact with a

claimant during the relevant period to qualify as competent).

      The ALJ properly gave some weight to Ms. Scott’s statement, agreeing that

Soler Amor has symptoms of depression and anxiety. The ALJ properly reasoned

that the activities that Ms. Scott listed do not reflect disabling limitations and

objective testing in the record does not support her stated physical limitations.

Inconsistency with medical evidence and activities of daily living are germane

reasons for discrediting lay witness testimony. Bayliss v. Barnhart, 427 F.3d 1211,

1218 (9th Cir. 2005). The ALJ also gave a germane reason to discount Ms. Scott’s

letter because she described mental limits that conflicted with examining

psychologist Dr. Duvall’s assessment. Id.

      The ALJ properly gave little weight to Ms. Juul’s statement that Soler Amor

is nervous and easily districted, causing her to cry and panic because it was

inconsistent with Dr. Duvall’s opinion that Soler Amor could pay attention and


                                           4                                     16-35254
concentrate. The ALJ erred in giving little weight to Ms. Juul’s letter because she

did not have objective information or testing. An ALJ may not reject lay testimony

simply because the lay witness is not “knowledgeable in the medical and/or

vocational field.” Bruce v. Astrue, 557 F.3d 1113, 1116 n.1 (9th Cir. 2009).

However, this error was harmless because the ALJ gave a germane reason to give

little weight to her letter because it conflicts with Dr. Duvall’s opinion. See

Bayliss, 427 F.3d at 1218.

      AFFIRMED.




                                          5                                       16-35254
