Connie Gutierrez v. CAROLYN W. COLVIN, Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CONNIE GUTIERREZ,
Plaintiff-Appellant,
v.
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant-Appellee.
No. 14-35443
D.C. No. 3:12-cv-02016-MA
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Malcolm F. Marsh, District Judge, Presiding
Submitted November 9, 2016**
Portland, Oregon
Before: McKEOWN, W. FLETCHER, and FISHER, Circuit Judges.
Connie Gutierrez appeals the district court’s decision affirming the
Commissioner of the Social Security Administration’s (“SSA”) denial of her
application for Social Security benefits for the period of September 2009 through
FILED
DEC 12 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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May 2011. The excerpts of record in this case are sealed, so our disposition does
not repeat the facts, which are known to the parties. Because the administrative
law judge’s (“ALJ”) findings are supported by substantial evidence and the ALJ
did not commit errors of law, we affirm.
The SSA applies a five-step analysis to determine whether an applicant is
disabled. 20 C.F.R. § 404.1520(a). Steps one through three are not contested in
this case. Before moving to step four, the ALJ must determine the applicant’s
residual functional capacity. Id. § 404.1520(e). Gutierrez challenges the ALJ’s
determination of her residual functional capacity based on her alleged symptoms,
medical evidence, and lay witness testimony. The record shows that the ALJ
analyzed and weighed all of the evidence, drawing conclusions that were supported
by substantial evidence. See Molina v. Astrue, 674 F.3d 1104, 1110–11 (9th Cir.
2012) (“Substantial evidence means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion. . . . Even when the evidence is
susceptible to more than one rational interpretation, we must uphold the ALJ’s
findings if they are supported by inferences reasonably drawn from the record.”
(internal quotation marks and citations omitted)).
Gutierrez also objects to the ALJ’s finding that the testimony regarding the
severity of her symptoms was not credible. Because substantial evidence supports
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the ALJ’s determination that Gutierrez’s testimony is sufficiently discredited by
her conservative treatment, her arguments here fail. See Johnson v. Shalala, 60
F.3d 1428, 1434 (9th Cir. 1995) (observing that conservative medical treatment
supported the ALJ’s negative credibility determination).
Substantial evidence also supports the ALJ’s decision to afford little weight
to Gutierrez’s former husband’s testimony on the ground that it conflicted with the
medical evidence. An ALJ may disregard lay witness testimony if he “gives
reasons germane to each witness for doing so.” Turner v. Comm’r of Soc. Sec.,
613 F.3d 1217, 1224 (9th Cir. 2010) (quoting Lewis v. Apfel, 236 F.3d 503, 511
(9th Cir. 2001)). Any error the ALJ committed by failing to elaborate on his
reasons for discrediting the opinion of Gutierrez’s primary care provider is
harmless. See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir.
2006).
As to step five, the record supports the vocational expert’s finding that
Gutierrez could perform the position of office helper. See Johnson, 60 F.3d at
1435 (“[T]here was persuasive testimony . . . matching the specific requirements
of a designated occupation with the specific abilities and limitations of the
claimant.”). Additionally, the record reflects that the ALJ appropriately inquired
into whether the vocational expert’s opinion was consistent with the Dictionary of
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Occupational Titles, Massachi v. Astrue, 486 F.3d 1149, 1152–54 (9th Cir. 2007),
and that the testimony was in fact consistent, see DOT § 239.567-010, 1991 WL
672232. To the extent Gutierrez argues that the ALJ relied on improper statistics
regarding the office helper position, she has waived that argument by failing to
assert it in her opening brief. Officers for Justice v. Civil Serv. Comm’n, 979 F.2d
721, 726 (9th Cir. 1992).
Finally, Gutierrez challenges the ALJ’s determination of her residual
functional capacity because the ALJ purportedly neglected to include all of
Gutierrez’s limitations in his questions to the vocational expert. However, because
the ALJ’s residual functional capacity finding is supported by substantial evidence,
his hypothetical question to the vocational expert that reflected that finding was not
in error. See Bayliss, 427 F.3d at 1217 (“The hypothetical that the ALJ posed to
the [vocational expert] contained all of the limitations that the ALJ found credible
and supported by substantial evidence in the record. The ALJ’s reliance on
testimony the [vocational expert] gave in response to the hypothetical therefore
was proper.”).
Because we conclude that the ALJ’s findings are supported by substantial
evidence, we need not reach Gutierrez’s request that we remand for an immediate
award of benefits.
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AFFIRMED.
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