                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             MAY 01 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


LYNN M. PACHECO,                                 No.    16-35844

              Plaintiff-Appellant,               D.C. No. 3:15-cv-05848-BHS

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

              Defendant-Appellee.


                    Appeal from the United States District Court
                      for the Western District of Washington
                    Benjamin H. Settle, District Judge, Presiding

                             Submitted April 27, 2018**


Before: GOODWIN, LEAVY, and SILVERMAN, Circuit Judges.

      Lynn Pacheco appeals the district court’s affirmance of the Commissioner of

Social Security’s denial of her application for disability insurance benefits under

Title XVI of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291

      *
             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).
and 42 U.S.C. § 405(g). We review de novo, Attmore v. Colvin, 827 F.3d 872, 875

(9th Cir. 2016), and we affirm.

      Substantial evidence in the record supports the administrative law judge’s

(“ALJ’s”) assessment of the medical evidence, and any error was harmless. While

Pacheco argues the ALJ erred by failing to acknowledge the medical evidence

from Drs. Danielson and Lawton supports Pacheco’s testimony concerning her

symptoms and limitations, she does not identify any specific errors the ALJ made

when assessing this evidence. Similarly, although Pacheco asserts the ALJ erred by

not acknowledging Dr. Lawton is a rheumatologist, she does not indicate any way

in which the ALJ failed to support his decision with substantial evidence or any

harmful error that influenced the ultimate nondisability determination. See

Diedrich v. Berryhill, 874 F.3d 634, 638 (9th Cir 2017); Zavalin v. Colvin, 778

F.3d 842, 845 (9th Cir. 2015); Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir.

2012).

      The ALJ also did not err by affording Dr. Gist’s opinion “significant

weight.” Pacheco contends the ALJ erred by not providing Dr. Gist with copies of

some of Pacheco’s medical records because Dr. Gist’s evaluation does not list

these records in his summary of the documents he reviewed. Although it is unclear

from the record whether Dr. Gist in fact reviewed the records at issue, he did base


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his opinion on his own examination of Pacheco. As a result, Dr. Gist’s opinion

constitutes substantial evidence, and the ALJ did not err by relying upon it. See

Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). In addition, even if Dr.

Gist did not review all of Pacheco’s medical records, Pacheco has not explained

how this procedural error affected her substantial rights, as required to demonstrate

reversible error. See Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012).

Pacheco’s argument that the ALJ erred by failing to acknowledge that some of Dr.

Gist’s conclusions are inconsistent with his findings also lacks merit, as she does

not show how Dr. Gist’s findings are inconsistent with his conclusions concerning

her functional limitations.

      Pacheco’s argument that the ALJ erred in assessing the evidence from

examining psychologist Dr. Tarantino, to which the ALJ assigned “significant

weight,” also lacks merit. Pacheco maintains Dr. Tarantino’s findings support her

testimony concerning her debilitating symptoms and limitations. However, her

assertion simply amounts to advocating for an alternative interpretation of the

record; to the extent the evidence was ambiguous, the ALJ reasonably resolved this

ambiguity, and the Court will uphold the ALJ’s rational interpretation of the

record. See Tommasetti v. Astrue, 533 F.3d 1035, 1041-42 (9th Cir. 2008); Ryan v.

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


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      Pacheco also disputes the validity of the ALJ’s assessment of consulting

physician Dr. Hoskins’ opinion, to which the ALJ accorded “good weight,” but

less weight than other medical opinion evidence, because Dr. Hoskins did not

examine Pacheco. Despite Pacheco’s argument that the ALJ erred by relying on

Dr. Hoskins’ opinion because he did not examine Pacheco, the ALJ took this factor

into account when weighing this evidence. Pacheco does not call attention to any

substantive error the ALJ committed or any way in which the ALJ’s evaluation of

Dr. Hoskins’ opinion lacked substantial evidentiary support. See Diedrich, 874

F.3d at 638.

      Furthermore, in arguing the ALJ failed to properly evaluate the medical

evidence because a reasonable ALJ could have reached a different disability

determination, Pacheco advocates the incorrect standard of review. “[T]he key

question is not whether there is substantial evidence that could support a finding of

disability, but whether there is substantial evidence to support the Commissioner’s

actual finding that the claimant is not disabled.” Jamerson v. Chater, 112 F.3d

1064, 1067 (9th Cir. 1997).

      Pacheco’s argument that the ALJ erred by failing to acknowledge other

various pieces of medical evidence Pacheco lists from different providers support

Pacheco’s testimony also lacks merit. Pacheco has not shown the ALJ’s decision


                                          4
lacks support or contains harmful error, see Diedrich, 874 F.3d at 638, and she has

failed to argue this issue “specifically and distinctly” as required to invoke this

court’s review. See Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929-30

(9th Cir. 2003); accord Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155,

1161 n.2 (9th Cir. 2008).

      While the ALJ did err in assigning “little weight” to medical evidence

predating Pacheco’s application for disability benefits, Pacheco has not shown this

error was harmful. Although evidence that predates the alleged onset date of

disability is of limited relevance, Carmickle, 533 F.3d at 1165, evidence that

predates the claimant’s application date but postdates the alleged onset date is

pertinent to the alleged period of disability. Pacheco does draw attention to some

evidence the ALJ discounted that predated her application date but postdated her

alleged onset date. Nevertheless, the evidence to which Pacheco cites includes

findings similar to other medical evidence to which the ALJ afforded significant

weight and does not include any opinions about Pacheco’s functional limitations.

Thus, crediting this other medical evidence would not have impacted the ALJ’s

ultimate decision concerning Pacheco’s disability status, rendering any error

harmless. See Molina, 674 F.3d at 1115; Burch v. Barnhart, 400 F.3d 676 483 (9th

Cir. 2005).


                                           5
      The ALJ did not err in discounting Pacheco’s testimony. The ALJ applied

the requisite two-step framework and cited specific, clear, and convincing reasons

for discounting Pacheco’s statements. See Trevizo v. Berryhill, 871 F.3d 664, 678

(9th Cir. 2017). The ALJ cited contradictory medical evidence, evidence that

Pacheco’s symptoms were well controlled with medication, and statements

Pacheco had made contradicting her claims of debilitating impairment. See Warre

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

674 F.3d at 1112; Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th

Cir. 2009). Notwithstanding Pacheco’s general arguments that the ALJ’s reasons

for rejecting her testimony are not clear and convincing, and that the ALJ’s

assessment is based on an improper evaluation of the medical evidence, Pacheco

does not support her assertions with specific allegations of error. Because the ALJ

supported his decision with a reasonable interpretation of the record, we will not

disturb his decision. See Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017).

      The ALJ did err by discounting the lay witness testimony from Pacheco’s

friend Priscilla Watson by reasoning that it was not based on objective medical

evidence, as lay witness evidence by its nature is based on the witness’s

observations, rather than medical evidence. See Bruce v. Astrue, 557 F.3d 1113,

1116 (9th Cir. 2009). However, the ALJ also provided a valid, germane reason for


                                          6
discounting Ms. Watson’s testimony–its inconsistency with the medical evidence.

See Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). In addition, Ms.

Watson’s and Pacheco’s testimony substantially overlap, and the ALJ’s reasons for

rejecting Pacheco’s testimony “apply with equal force to the lay testimony,”

meaning any error was harmless. See Molina, 674 F.3d at 1122.

      Finally, Pacheco argues the ALJ erred in formulating the RFC and making

the Step Five findings. These assertions depend upon Pacheco’s arguments that the

ALJ erred in previous steps in the sequential evaluation. Because Pacheco has not

demonstrated the ALJ committed harmful error earlier in his analysis, her

argument lacks support.

            AFFIRMED.




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