                                                                           FILED
                               NOT FOR PUBLICATION                          APR 11 2013

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




                               FOR THE NINTH CIRCUIT



MICHELE LINETTE MATTISON, on                       No. 10-56754
behalf of her minor child K.A,
                                                   D.C. No. 5:10-cv-00097-RZ
                 Plaintiff - Appellant,

  v.                                               MEMORANDUM *

MICHAEL J. ASTRUE, Commissioner of
Social Security,

                 Defendant - Appellee.



                      Appeal from the United States District Court
                          for the Central District of California
                      Ralph Zarefsky, Magistrate Judge, Presiding **

                                Submitted May 7, 2012 ***

Before:          HUG, FARRIS, and LEAVY, Circuit Judges.

       Michele Mattison appeals pro se on behalf of her minor child, K.A., who



       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
           ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
alleged disability based on severe asthma. The Commissioner of Social Security

denied K.A.’s application for supplemental security income under Title XVI of the

Social Security Act. The district court affirmed the Commissioner’s decision. We

have jurisdiction under 28 U.S.C. § 1291 and we affirm.

      We review de novo a district court’s judgment upholding the denial of social

security benefits. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). We

must affirm the denial of benefits unless it is based on legal error or the findings of

fact are not supported by substantial evidence. Valentine v. Comm’r of Soc. Sec.

Admin., 574 F.3d 685, 690 (9th Cir. 2009).

      The ALJ found that K.A.’s condition did not meet the regulatory criteria for

presumptively disabling asthma under 20 C.F.R. Pt. 404, Subpt. P, Appx 1

§ 103.03 (“Listing 103.03”).

      The ALJ then evaluated K.A.’s condition under the functional equivalence

test of 20 C.F.R. § 416.926a for determining whether a person under the age of 18

is disabled. This test requires an assessment of the claimant’s ability to function in

six domains of functioning: acquiring and using information; attending and

completing tasks; interacting and relating with others; moving about and

manipulating objects; caring for self; and health and physical well-being. 20

C.F.R. § 416.926a(b)(1). A claimant is disabled if the evidence shows marked


                                           2                                     10-56754
limitation in two domains, or extreme limitation in one. 20 C.F.R. § 416.926a(a);

SSR 09-1p, 2009 WL 396031 *1. The ALJ concluded that K.A.’s asthma resulted

in marked impairment in only one domain of functioning, viz. the domain for

health and physical well-being.

      Mattison challenges the ALJ’s decision on three grounds. First, she

contends the ALJ failed to obtain and consider certain medical records in violation

of his duty to fully develop the record. Second, she contends the ALJ’s reasons for

discounting the opinion of K.A.’s treating physician were not supported by

substantial evidence. Third, she contends the ALJ improperly evaluated the

statements of a health aide at the school K.A. attended.

1.    Development of the Record

      With her reply brief, Mattison, who was represented by counsel at the

hearing and before the district court, submitted progress notes and pulmonary

function test results reflecting K.A.’s treatment, which Mattison alleges the ALJ

failed to obtain. A reviewing court may remand a case for the Commissioner to

consider new evidence that is material. Mayes v. Massanari, 276 F.3d 453, 461-62

(9th Cir. 2001). Evidence is material only if there is a “reasonable possibility that

the new evidence would have changed the outcome” if it had been before the ALJ.

Id. at 462; Booz v. Sec’y of Health & Human Servs., 734 F.2d 1378, 1380 (9th Cir.


                                           3                                    10-56754
1984). We consider the additional evidence submitted with Mattison’s reply brief

to determine whether it is material.

      Mattison contends the additional medical evidence includes forced

expiratory volume test (“FEV1”) values that satisfy the criteria for Listing 103.03.

In fact, the additional medical evidence Mattision submitted shows that K.A.’s

FEV1 values exceeded the listing level while she was taking appropriate

medications. There were a few infrequent low FEV1 values but these did not show

a disabling impairment that persisted for a continuous period of at least 12 months.

20 C.F.R. §§ 404.1509, 416.909. Because the medications improved K.A.’s FEV1

values above the listing level, K.A. did not satisfy the listing criteria. See Warre v.

Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (impairments

that are effectively controlled by medication are not disabling). The additional

evidence submitted with Mattison’s Reply brief only fortifies the ALJ’s

conclusions regarding the listing criteria.

      Mattison also contends the additional medical evidence supports a disability

finding under the functional equivalence test described previously. The ALJ found

that K.A.’s asthma resulted in marked impairment only in the domain for health

and physical well-being. Mattison contends the additional medical evidence

supports marked impairment in a second domain of function involving moving


                                              4                                  10-56754
about and manipulating objects. The domain for moving about and manipulating

objects considers limitations in “gross and fine motor skills.” 20 C.F.R. §

416.926a(j). The domain for physical health and well being covers limitations

such as shortness of breath, weakness, lack of stamina, fatigue, and side effects of

asthma medications. 20 C.F.R. § 416.926a(l)(1). The additional medical evidence

focuses on K.A.’s respiratory function and does not address motor function.

      Accordingly, the ALJ’s failure to obtain the additional medical evidence was

harmless. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (an error is

harmless if, looking at the record as a whole, the error does not alter the outcome

of the case); Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162-63 and

n. 4 (9th Cir. 2008) (an error is harmless if the ALJ’s determination remains

supported despite the error).

      To the extent Mattison contends the ALJ should have engaged in further

development of the record by recontacting K.A.’s physicians or ordering further

evaluation, the argument is unpersuasive. An ALJ’s duty to conduct further

inquiry is triggered only when the evidence is ambiguous or when the

administrative record is inadequate to allow for proper evaluation of the disability

claim. Mayes, 276 F.3d at 459-60; Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th

Cir. 2001). Neither condition is present here.


                                          5                                     10-56754
      2.     Treating Physician’s Opinion

      Mattison contends the additional evidence submitted with her reply brief

undermines the ALJ’s reasons for discounting the opinion of David Bailey, M.D.

Even if she were correct, however, Dr. Bailey’s opinion would only fortify the

ALJ’s determination that K.A. suffered from marked impairment in only the

domain for health and physical well-being.

      Dr. Bailey opined that K.A.’s asthma prevented her from engaging in

vigorous activities, such as running, weight lifting, and participating in team sports.

Such limitations based on respiratory impairment fall squarely within the domain

for health and physical well-being. 20 C.F.R. § 416.926a(l). Because Dr. Bailey

did not address limitations attributable to K.A.’s gross or fine motor function, his

opinion does not support marked limitation in the domain for moving about and

manipulating objects. 20 C.F.R. § 416.926a(j). Accordingly, even if the ALJ

should have given Dr. Bailey’s statements greater weight, the error was harmless

because Dr. Bailey’s opinion only strengthens the ALJ’s determination. See

Molina, 674 F.3d at 1115; Carmickle, 533 F.3d at 1162-63.

      3.     Statement of School Health Aide

      The ALJ provided germane reasons for discounting the statement of the

health aide at the school K.A. attended. Valentine, 574 F.3d at 694. The health


                                           6                                    10-56754
aide said K.A.’s asthma was debilitating, but school records showed that K.A.

functioned well in all areas other than vigorous physical activity.

      In addition, like Dr. Bailey’s statements, the health aide’s statement

describes only limitations from asthma falling within the domain of health and

physical well-being. Giving her statement greater weight would only lend added

support for the ALJ’s determination. Accordingly, even if the ALJ should have

given the health aide’s statement greater weight, the error was harmless. Molina,

674 F.3d at 1115, Carmickle, 533 F.3d at 1162.

      In conclusion, if Mattison were to prevail on all of her claimed errors, and

all the evidence she relies on were fully credited, it would only fortify the ALJ’s

conclusion that K.A. has marked impairment in only one of the six factors used in

the functional equivalence test.

      AFFIRMED.




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