                                                                              FILED
                           NOT FOR PUBLICATION
                                                                              OCT 04 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JACQUETTA NACOSTE-HARRIS,                        No.   16-35022

              Plaintiff-Appellant,               D.C. No. 3:14-cv-01594-JO

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

              Defendant-Appellee.


                    Appeal from the United States District Court
                             for the District of Oregon
                     Robert E. Jones, District Judge, Presiding

                           Submitted October 4, 2017 **


Before: CLIFTON, N.R. SMITH, and CHRISTEN, Circuit Judges.

      Jacquetta Nacoste-Harris appeals pro se the district court’s decision

affirming the Commissioner of Social Security’s denial of Nacoste-Harris’s


      *
             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).
application for supplemental security income under Title XVI of the Social

Security Act. We review de novo, Ghanim v. Colvin, 763 F.3d 1154, 1159 (9th

Cir. 2014), and we affirm.

      Nacoste-Harris contends that the administrative law judge (“ALJ”)

discriminated against her because she is a former addict and was using marijuana

at the time of her hearing. We disagree. The ALJ did not deny Nacoste-Harris’s

claim on the basis of her past or present drug use. Rather, the ALJ found that

Nacoste-Harris’s “history of crack cocaine dependence and current marijuana

abuse is not a material factor in this decision.” As a result, Nacoste-Harris’s

allegations do not show that the ALJ’s behavior reflected a clear inability to render

fair judgment, and they are not sufficient to rebut the presumption that an ALJ is

unbiased. Bayliss v. Barnhart, 427 F.3d 1211, 1214–15 (9th Cir. 2005).

      Construing Nacoste-Harris’s pleadings liberally, Garmon v. Cty. of Los

Angeles, 828 F.3d 837, 846 (9th Cir. 2016), she contends that the ALJ discounted

her testimony about the severity of her symptoms because she is a former addict.

The ALJ did not mention Nacoste-Harris’s former cocaine use or her current

marijuana use as a basis for finding her symptom testimony less than fully

credible. The ALJ did, however, consider Nacoste-Harris’s drug use in

formulating her residual functional capacity (“RFC”), and the ALJ included in the


                                           2
RFC greater limitations, in part, to accommodate Nacoste-Harris’s drug use. This

was not only permissible, but required. See Robbins v. Soc. Sec. Admin., 466 F.3d

880, 883 (9th Cir. 2006) (“In determining a claimant’s RFC, an ALJ must consider

all relevant evidence in the record, including, inter alia, medical records, lay

evidence, and ‘the effects of symptoms, including pain, that are reasonably

attributed to a medically determinable impairment.’” (quoting SSR 96-8p, 1996

WL 374184, at *5)). Because the ALJ’s inclusion of additional RFC limitations

benefits, rather than prejudices, Nacoste-Harris, any error in discussing her drug

use is harmless. Cf. Johnson v. Shalala, 60 F.3d 1428, 1436 n.9 (9th Cir. 1995)

(finding harmless an ALJ’s “overinclusion” of limiting factors in the hypothetical

posed to a vocational expert because it benefitted the claimant).

      Finally, Nacoste-Harris attached additional evidence to her opening brief.

Remand under 42 U.S.C. § 405(g) is not appropriate because Nacoste-Harris has

not shown a reasonable possibility of a different outcome if the evidence had been

presented to and considered by the agency. Booz v. Sec’y of Health & Human

Servs., 734 F.2d 1378, 1381 (9th Cir. 1984). Four of the pages of Nacoste-Harris’s

new evidence document her substance abuse treatment in 2007, and her subsequent

abstinence from cocaine. As discussed above, the ALJ acknowledged Nacoste-

Harris’s continued abstinence from cocaine use and concluded that her drug use


                                           3
was immaterial to the non-disability determination. The other two pages of new

evidence are a report from a September 2015 MRI of Nacoste-Harris’s cervical

spine. Although “reports containing observations made after the period for

disability are relevant to assess the claimant’s disability,” Smith v. Bowen, 849 F.2d

1222, 1225 (9th Cir.1988), Nacoste-Harris offers no argument for how this new

report, which post-dates the ALJ’s decision by nearly two years, is material to the

ALJ’s determination. As a result, Nacoste-Harris has not carried her burden of

demonstrating materiality. Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001).

      AFFIRMED.




                                          4
