                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS
                                                                             FILED
                            FOR THE NINTH CIRCUIT
                                                                             JAN 06 2017
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
KERI MIGLIORETTO,                                No. 13-36047

               Plaintiff - Appellant,            D.C. No. 6:12-cv-01136-JE

 v.
                                                 MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,

               Defendant - Appellee.


                    Appeal from the United States District Court
                             for the District of Oregon
                    Malcolm F. Marsh, District Judge, Presiding
                                                        **
                            Submitted January 4, 2017

Before:        PREGERSON, LEAVY, and OWENS, Circuit Judges.

      Keri Miglioretto appeals the district court’s judgment affirming the

Commissioner of Social Security’s denial of her application for disability

insurance benefits under Title II of the Social Security Act, after an administrative


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
law judge (ALJ) concluded that Miglioretto did not overcome the presumption of

continuing non-disability from a previous decision finding her not disabled. We

affirm.

      We review the district court’s order de novo, and may set aside the denial of

benefits only if it is not supported by substantial evidence or contains legal error.

42 U.S.C. § 405(g); Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012).

      1. The ALJ provided specific, clear, and convincing reasons for rejecting

Miglioretto’s subjective complaints, including her daily activities, providers’

observations, and lack of motivation to work. See Smolen v. Chater, 80 F.3d 1273,

1284 (9th Cir. 1996) (discussing factors considered in evaluating credibility); see

also Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (lack of motivation

to work); Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) (tendency to

exaggerate); cf. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (daily activities).

      2. The ALJ provided specific, clear, and convincing reasons for rejecting

certain medical opinions in determining Miglioretto’s residual functional capacity

(RFC). Tommasetti, 533 F.3d at 1041 (reciting standard). The ALJ properly

rejected the opinions of treating providers Stephan Ames, M.D., James Morris,

M.D., and Ron Lechnyr, Ph.D., D.W.W., and examining provider Ryan Scott,

Ph.D., because the providers’ opinions were based on Miglioretto’s properly


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discounted credibility and were inconsistent with their own objective findings and

the medical record. Id. (permitting ALJ to reject opinion based on claimant’s

incredible self-reports). Any error in not expressly rejecting Dr. Lechnyr’s opinion

based on Miglioretto’s discounted credibility is harmless, because it is

“inconsequential to the ultimate nondisability determination.” Brown-Hunter v.

Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks omitted).

      3. Miglioretto contends that the presumption of continuing non-disability

under Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988) does not apply. She

argues that changed conditions rebut the presumption of non-disability, her panic

disorder and depression are more severe, her degenerative disc disease and obesity

are new impairments, and the ALJ de facto reopened her prior application by

reassessing the evidence. The ALJ properly determined that neither Miglioretto’s

new nor existing impairments altered the original RFC, and that there had been no

legally significant change in age category, so as to overcome the presumption of

continuing non-disability. Vasquez v. Astrue, 572 F.3d 586, 597-98 (9th Cir. 2009)

(citing legally significant age change as a changed circumstance); Lester v. Chater,

81 F.3d 821, 827 (9th Cir. 1995) (citing increased severity of impairment).

Additionally, the ALJ’s discussion of the merits, followed by a denial of

Miglllioretto’s claims as barred by the continued presumption of non-disability, did


                                          3
not constitute a reopening. See Krumpelman v. Heckler, 767 F.2d 586, 589 (9th

Cir. 1985). The ALJ compared the claims to determine whether the presumption

should apply, and did not “consider[] ‘on the merits’ the issue of [Miglioretto’s]

disability during the already-adjudicated period.” Lester, 81 F.3d at 827 n.3

(quoting Gregory v. Bowen, 844 F.2d 664, 666 (9th Cir. 1988)); see also

Krumpelman, 767 F.2d at 589. Moreover, the ALJ’s alternative, unchallenged step

5 conclusion that Miglioretto can perform other work based on the well-supported

and unchanged RFC determination renders any error in evaluating Miglioretto’s

current impairments inconsequential. See Brown-Hunter, 806 F.3d at 492.

      4. Finally, the ALJ provided a reason “germane to the witness” for rejecting

the testimony of Miglioretto’s ex-husband, lay witness Brian Miglioretto. The ALJ

noted that Brian’s testimony was similar to Miglioretto’s properly rejected

subjective complaints. See Molina, 674 F.3d at 1114 (reciting standard); Valentine

v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (citing rejection

of claimant’s own subjective complaints as a germane reason). Any error in not

explicitly rejecting Brian’s testimony was inconsequential to the ultimate

nondisability determination. Brown-Hunter, 806 F.3d at 492.

      AFFIRMED.




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