NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                         JUL 14 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

    LINDA M. ANDERSON,                           No. 18-35458

                     Plaintiff-Appellant,        D.C. No. 3:17-cv-05412-JPD

    v.

    ANDREW M. SAUL, Commissioner of
    Social Security,                             MEMORANDUM*

                     Defendant-Appellee.

                   Appeal from the United States District Court
                     for the Western District of Washington
                  James P. Donohue, Magistrate Judge, Presiding

                             Submitted July 10, 2020**
                               Seattle, Washington

Before: NGUYEN and BUMATAY, Circuit Judges, and SEEBORG,*** District
Judge.

      Linda Anderson appeals the district court’s order affirming the



      *
             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).
      ***
            The Honorable Richard Seeborg, United States District Judge for the
Northern District of California, sitting by designation.
Commissioner of Social Security’s denial of her application for disability

insurance benefits. We review the district court’s order de novo and reverse only if

the decision of the Administrative Law Judge (“ALJ”) “was not supported by

substantial evidence in the record as a whole or if the ALJ applied the wrong legal

standard.” Molina v. Astrue, 

, 1110 (9th Cir. 2012). “[W]e may not

reverse an ALJ’s decision on account of an error that is harmless.”

We affirm.

      First, the ALJ did not err in discounting Anderson’s subjective testimony

regarding the severity of her impairments. He explained how Anderson’s

testimony conflicted with the objective medical evidence from the adjudicative

period (August 2001 through December 2003), which showed only moderate

symptoms and treatment. The ALJ also observed that Anderson’s daily activities

were inconsistent with the limitations alleged, and that her pain appeared to

improve with conservative treatment before her date last insured (“DLI”).

Moreover, Anderson worked at near substantial gainful activity levels after the

adjudicative period, despite allegedly worsening symptoms. Collectively, these

were specific, clear, and convincing reasons for finding Anderson’s testimony only

partially credible. See Morgan v. Comm’r of Soc. Sec. Admin., 

, 599–

600 (9th Cir. 1999).

      Second, the ALJ did not err in discounting the contradicted opinion of Dr.


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Roes, Anderson’s treating physician. Rather, the ALJ provided specific, legitimate

reasons for doing so. See Thomas v. Barnhart, 

, 958 (9th Cir. 2002).

As the ALJ noted, Dr. Roes did not treat Anderson prior to her DLI, which means

his opinions are entitled to less weight than those of a contemporaneously treating

provider. See Macri v. Chater, 

, 545 (9th Cir. 1996). The ALJ also

observed that two of Dr. Roes’s opinions described Anderson’s limitations as of

2008 and 2010, rather than during the adjudicative period, which ended in 2003.

Further, Dr. Roes’s one retroactive opinion was contradicted by both the objective

medical record and Dr. Roes’s own treating notes. Given this conflict, the ALJ

was justified in concluding Dr. Roes relied heavily on Anderson’s own testimony,

which was properly discounted, as the basis for his opinions. See Tommasetti v.

Astrue, 

, 1041 (9th Cir. 2008).

      Nor did the ALJ err in evaluating the other medical evidence. He considered

the clinical findings of Dr. Martin and other treating providers in concluding

Anderson suffered from the severe impairments of knee osteoarthritis and

degenerative disk disease. However, the ALJ also catalogued the ways in which

this evidence was at odds with Anderson’s and Dr. Roes’s allegations of disabling

impairments. See Magallanes v. Bowen, 

, 750 (9th Cir. 1989) (“The

ALJ is responsible for . . . resolving conflicts in medical testimony”). Moreover,

the ALJ did not need to elaborate on his decision to apply only partial weight to


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Dr. Raulston’s “somewhat vague” testimony concerning Anderson’s need to

change positions and apply ice and heat for pain relief, because those needs were

nonetheless incorporated into Anderson’s residual functional capacity (“RFC”)

assessment. See Turner v. Comm’r Soc. Sec., 

, 1223 (9th Cir. 2010).

      Third, the ALJ’s decision to exclude any migraine- or depression-related

limitations from the RFC assessment was likewise supported by substantial

evidence. Anderson’s subjective testimony concerning these limitations was

appropriately discounted, and the medical record from the adjudicative period

tended to show these conditions were well controlled.

      Fourth, for many of the same reasons, the ALJ did not commit reversible

error in discounting the testimony of the lay witnesses. As the ALJ noted, the

statements and testimony of Daniel Anderson, the claimant’s husband, suffered

from the same infirmities as Anderson’s own subjective testimony—namely they

conflicted with the medical record. For instance, Mr. Anderson claimed his wife’s

sciatica was “so severe that she could not walk any more,” but the treatment notes

of providers do not corroborate this degree of impairment. So too with the lay

evidence from Anderson’s neighbor, Victoria Krause. See Bayliss v. Barnhart, 

, 1218 (9th Cir. 2005) (holding ALJ’s decision to reject lay witness

testimony to the extent it was inconsistent with the medical record was “supported

by substantial evidence and was not error”). Moreover, the ALJ’s failure to


                                         4
address Mr. Anderson’s testimony specifically—as opposed to his two written

statements—was harmless error, given the testimony’s overlap with his written

statements and with his wife’s testimony. 

.

      Lastly, since we find no error in the ALJ’s assessment of the medical and

testimonial evidence, substantial evidence supports the ALJ’s RFC determination

and step-four finding. See 

. Likewise, because the ALJ

posed hypotheticals to the vocational expert that included all limitations supported

by substantial evidence, there was no step-five error. See 

–57.

      AFFIRMED.




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