NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 1 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT NORA DELGADILLO, No. 20-56211

Plaintiff-Appellant, D.C. No. 2:19-cv-09373-JAK-KES v. MEMORANDUM* KILOLO KIJAKAZI, Acting Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California John A. Kronstadt, District Judge, Presiding Submitted November 10, 2021** Pasadena, California Before: COLLINS and LEE, Circuit Judges, and OTAKE,*** District Judge. Nora Delgadillo appeals the district court’s decision 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 Jill A. Otake, United States District Judge for the District of Hawaii, sitting by designation. Commissioner of Social Security’s denial of Social Security Disability Insurance Benefits. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s order affirming the administrative law judge’s (ALJ) denial of social security benefits “and will disturb the denial of benefits only if the decision contains legal error or is not supported by substantial evidence.” Terry v. Saul, 998 F.3d 1010, 1012 (9th Cir. 2021) (quoting Ford v. Saul, 950 F.3d 1141, 1153–54 (9th Cir. 2020)). “Substantial evidence means more than a mere scintilla, but less than a preponderance. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017) (citation omitted). Because the ALJ’s decision contained no harmful errors and was supported by substantial evidence, we affirm the district court’s determination.

84 (1st Cir. 1985) (concluding that it is ordinarily improper for an appellate court to take judicial notice of new evidence that is not in the record); Kemlon Prods. & Dev. Co. v. United States, 646 F.2d 223, 224 (5th Cir. 1981) (noting that it is inappropriate for an appellate court to take judicial notice of extra-record facts). We therefore decline to take judicial notice of the March 8, 2019 operative note.

Under the Social Security Act, any new evidence must be considered by the ALJ, as the factfinder, in the first instance. Sentence six of 42 U.S.C. § 405(g) authorizes the court to “at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g). The reviewing court is limited to considering the contents of the administrative record itself. See id. (“The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” (emphasis added)).

The district court denied Delgadillo’s motion to supplement the administrative record with 65 pages of new medical evidence, including the March 8, 2019 operative note, and rejected Delgadillo’s request for judicial notice of the operative note. In her Opening Brief, Delgadillo did not appeal these denials or request supplementation of the record and remand pursuant to sentence six of § 405(g). Accordingly, she has waived any argument to supplement the record with her operative note. See Friends of Yosemite Valley v. Kempthorne, 520 F.3d 1024, 1033 (9th Cir. 2008).

range was inconsistent with findings in his psychological examination regarding her unremarkable mental status, her ability to engage in a range of daily activities, and her lack of mental health treatment. The ALJ offered germane reasons for giving little weight to the opinion of a physician assistant, Martha Salcido. See Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010) (citations omitted). Ms. Salcido’s restrictive assessment of Delgadillo’s limitations was not supported by objective medical findings following Delgadillo’s surgery.

engage in a number of daily activities contradicted her claims regarding the severity of her impairments. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (citations omitted).

Although the ALJ should have offered germane reasons for discounting a Disability Report prepared by a Social Security Administration caseworker, who observed that Delgadillo cried about her pain during an interview, see Turner, 613 F.3d at 1224 (citations omitted), his failure was inconsequential to the nondisability determination and was therefore harmless error. See Molina v. Astrue, 674 F.3d 1104, 1122 (9th Cir. 2012) (citations omitted), superseded by regulation on other grounds.

note2 arguably supports an assessment less restrictive than that offered by Dr. Harris, but he gave Delgadillo’s testimony some benefit of the doubt and adopted Dr. Harris’ assessment. Because the medical evidence does not support the severe limitations alleged by Delgadillo and in fact reflects improvement following her surgery, the ALJ did not err in relying on Dr. Harris’ assessment, even though he did not review post-operative records. See Thomas, 278 F.3d at 957 (“The opinions of non-treating or non-examining physicians may also serve as substantial evidence when the opinions are consistent with independent clinical findings or other evidence in the record.” (citations omitted)).

Delgadillo also contends that the ALJ failed to consider the impact of additional functional impairments (neck impairment, rheumatoid arthritis and chronic pain syndrome, and mental impairment) in determining her RFC. Her brief, however, fails to “detail what other physical limitations” should have been included in the RFC based on these considerations, which overlap with points the ALJ expressly considered. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 692 n.2 (9th Cir. 2009).

AFFIRMED.