                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 20 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                           FOR THE NINTH CIRCUIT



COULETTE OSMORE,                                 No. 11-35212

              Plaintiff - Appellant,             D.C. No. 3:09-cv-05640-RBL

  v.
                                                 MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
the Social Security Administration

              Defendant - Appellee.



                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                             Submitted March 6, 2012 **
                                Seattle, Washington

Before: PAEZ and FERNANDEZ, Circuit Judges, and GWIN, District Judge.***




        *
             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).
        ***
            The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
      Coulette Osmore appeals the district court’s judgment reversing the

Commissioner’s final decision that Osmore was not disabled within the meaning of

Title XVI of the Social Security Act, 42 U.S.C. §1383c(a)(3), and remanding the

matter for further administrative proceedings. With her appeal, Osmore seeks an

order that, on remand, the Adminstrative Law Judge (ALJ) must complete an

entirely new evaluation of Osmore’s Supplemental Security Income and Disability

Insurance Benefits applications. We affirm.

      Standing

      Osmore has standing to pursue this appeal because “the District Court’s

order g[ave] [Osmore] some, but not all, of the relief she requested.” Forney v.

Apfel, 524 U.S. 266, 271 (1998).

      Evaluation of the Medical Evidence

      The Commissioner says that, on remand, he will both consider the effects of

Osmore’s mental impairments and allow Osmore to argue that medication side

effects limit her residual functional capacity. Accordingly, Osmore’s claim that

the ALJ improperly disregarded evidence of Osmore’s depression and medication

side effects is moot. See W. Coast Seafood Processors Ass’n v. Natural Res. Def.

Council, Inc., 643 F.3d 701, 704 (9th Cir. 2011) (“An appeal is moot if there exists

no ‘present controversy as to which effect relief can be granted.’” (quoting

Outdoor Media Grp., Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir.
2007))). On remand, the ALJ must consider Osmore’s mental impairments and

medication side effects.

      The ALJ did not err by failing to discuss specifically Osmore’s MRI and CT

scan results. “[I]n interpreting the evidence and developing the record, the ALJ

does not need to discuss every piece of evidence.” Howard ex rel. Wolff v.

Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (citation and internal quotation

marks omitted). Here, Osmore’s MRI results were consistent with her CT scan

results. Both revealed that Osmore has the severe impairment spondylolisthesis.

The ALJ properly considered Osmore’s medical records—including records that

evaluated her MRI and CT scan—in evaluating Osmore’s impairments.

      The ALJ provided specific and legitimate reasons for rejecting Dr. Tim

Truschel’s (a treating physician) opinion: other treating and non-treating

physicians’ opinions, along with Osmore’s treatment records, contradicted Dr.

Truschel’s opinion. A non-examining physician’s opinion may constitute

substantial evidence to disregard the opinion of an examining physician if it is

consistent with other independent evidence in the record and the ALJ does not rely

on the non-examining physician’s report alone. Lester v. Chater, 81 F.3d 821, 831

(9th Cir. 1995).

      The ALJ did not err in evaluating the medical records from Osmore’s twelve

other physicians. The ALJ noted Osmore’s history of back pain, cited several of
Osmore’s physicians’ medical opinions and treatment records, and appropriately

developed and considered the record. See, e.g., Howard, 341 F.3d at 1012.

      Evaluation of Other Evidence

      The ALJ did not err in discrediting Osmore’s symptom testimony based on

inconsistencies with 1) the objective medical evidence and 2) Osmore’s daily

activities. See Regennitter v. Comm'r Soc. Sec. Admin., 166 F.3d 1294, 1297 (9th

Cir. 1998) (Inconsistencies with clinical observations can “satisfy the requirement

of a clear and convincing reason for discrediting a claimant’s testimony.”); Rollins

v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (The ALJ may reject the

claimant’s testimony when inconsistent with the claimant’s daily activities and

contrary to the medical evidence.).

      The ALJ did not err in failing to consider Osmore’s lay-witness evidence. In

2004, Osmore’s husband and sister prepared reports for Osmore’s prior Social

Security benefits applications; the present application concerns disability

beginning March 2005. Accordingly, these out-of-date lay-witness reports are not

probative evidence of Osmore’s 2005 disability status. See Vincent v. Heckler, 739

F.2d 1393, 1395 (9th Cir. 1984) (“[T]he evidence which the Secretary ignored was

neither significant nor probative.”). On remand, however, Osmore may seek leave

to submit additional evidence from lay witnesses.

      Other Claims of Error
      The district court explained that because “the ALJ erred in evaluating the

medical evidence in the record concerning [Osmore’s] mental impairments and

limitations,” the ALJ also erred “in assessing [Osmore’s] residual functional

capacity.” In its judgment reversing and remanding, the district court ordered the

ALJ to make a new determination of Osmore’s residual functional capacity and of

Osmore’s ability to perform past relevant and current work. Accordingly,

Osmore’s remaining allegations of error—regarding the ALJ’s determination of

Osmore’s residual functional capacity and ability to perform past relevant and

current work—are also moot. See W. Coast Seafood, 643 F.3d at 704.

      AFFIRMED.
