                           NOT FOR PUBLICATION                           FILED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

JISELLE A. WATERHOUSE,                          No.    17-35804

                Plaintiff-Appellant,            D.C. No. 3:16-cv-05968-MAT

 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
                 Mary Alice Theiler, Magistrate Judge, Presiding

                     Argued and Submitted October 12, 2018
                              Seattle, Washington

Before: N.R. SMITH and CHRISTEN, Circuit Judges, and PAYNE,** District
Judge.

      Jiselle A. Waterhouse (“Waterhouse”) appeals the District Court’s order

affirming the Administrative Law Judge’s (“ALJ”) partial denial of her Social

Security benefits claim. Waterhouse initially claimed a disability onset date of July


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Robert E. Payne, United States District Judge for the
Eastern District of Virginia, sitting by designation.
31, 2009. The ALJ determined Waterhouse to be disabled as of March 12, 2014, but

not before. The issue on appeal—as acknowledged by Waterhouse’s counsel at oral

argument—is whether the ALJ erred in determining that March 12, 2014 was the

proper date. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 42 U.S.C. §

405(g), and we affirm.

      1.     We review the District Court’s order affirming an ALJ’s denial of

Social Security disability benefits de novo. See Trevizo v. Berryhill, 871 F.3d 664,

674 (9th Cir. 2017). We may set aside an ALJ’s disability determination “only when

the ALJ’s decision is ‘based on legal error or not supported by substantial evidence

in the record.’” Id. (quoting Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1035

(9th Cir. 2003)). Where the evidence in the record is amenable to different rational

interpretations, we must uphold the ALJ’s determination if the ALJ relied on one of

those rational interpretations. Id. at 674-75.

      2.     Waterhouse has the burden to establish that the record requires a finding

of an earlier disability onset date. She has failed to meet that burden. In her briefs,

Waterhouse urges that the onset date should be July 31, 2009. However, at oral

argument, Waterhouse’s counsel conceded that evidence in the record did not

support a finding that Waterhouse was disabled during 2009 and 2010. At oral

argument, Waterhouse’s counsel proposed several additional dates in 2011 that

could be considered the disability onset date. Waterhouse did not meet her burden


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of demonstrating that the ALJ erred by not selecting from these dates because the

ALJ’s determination that Waterhouse was not disabled until March 12, 2014 was

based on specific evidence or opinions that we cannot say were improperly

discounted.

      3.      The ALJ gave “specific and legitimate reasons that are supported by

substantial evidence” for discounting Dr. Layton’s opinion and giving it only “partial

weight.” Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quoting Ryan v.

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)). The ALJ noted

inconsistences in Dr. Layton’s treatment notes, considered the lack of temporal

scope indicated in his February 2013 letter, considered the failure to perform the

tender points test, considered the lack of objective medical evidence to establish a

fibromyalgia diagnosis, and considered how Dr. Layton’s diagnosis was inconsistent

with Waterhouse’s daily activities.

      4.      The ALJ provided “specific, clear and convincing reasons” for

discounting Waterhouse’s own testimony about her symptoms and limitations.

Trevizo, 871 F.3d at 678 (quoting Garrison, 759 F.3d at 1014-15). These reasons

included inconsistencies both between Waterhouse’s testimony and her activities

and within her own testimony, Waterhouse’s refusal of medical treatments, and

records indicating that her symptoms improved with medication. See Molina v.

Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012) (discussing how the ALJ may assess


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claimant testimony).

      5.     Waterhouse also challenges the ALJ’s discounting of opinions by non-

physician health care providers, including Mr. Myers (physician assistant), Ms.

Hensley (mental health therapist), and Ms. Fields (nurse practitioner). The reasons

that the ALJ provided to discount the opinions of these non-physician providers were

at least “germane,” see Molina, 674 F.3d at 1111, and included inconsistencies

between reports of Waterhouse’s activities and treatment notes and contradictions

with other medical evidence. See Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th

Cir. 2015) (reiterating that it is within the ALJ’s province to resolve conflicts in the

testimony and ambiguities in the record).

      6.     The ALJ provided “germane” reasons for discounting testimony of lay

witnesses—Waterhouse’s mother and Rebecca Morey of the state Division of

Vocational Rehabilitation—regarding Waterhouse’s symptoms and limitations. See

Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). These reasons included the fact

that Ms. Morey did not personally examine Waterhouse or review her medical

records, and inconsistencies between the witnesses’ testimony and other specified

aspects of the record. See Lewis v. Apfel, 236 F.3d 503, 510-12 (9th Cir. 2001).

      7.     Because substantial evidence supports the ALJ's evidentiary

conclusions and credibility determinations, we likewise conclude the ALJ

appropriately   evaluated    Waterhouse's       Residual   Functional   Capacity    and


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appropriately conducted the Step Five analysis.

      8.    The ALJ’s review of the record in this case—including Waterhouse’s

in-person testimony before her—led her to conclude that Waterhouse was disabled

as of March 12, 2014. Waterhouse bore the burden of establishing an earlier

disability onset date. Our review of the ALJ’s decision satisfies us that the ALJ

provided legally sufficient reasons for coming to her conclusion, and the District

Court did not err in affirming her decision that Waterhouse was not disabled until

March 12, 2014. Accordingly, the judgment of the District Court is

      AFFIRMED.




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