Robin Roy v. CAROLYN W. COLVIN, Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBIN ROY,
Plaintiff - Appellant,
v.
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant - Appellee.
No. 14-35162
D.C. No. 2:12-cv-03078-FVS
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Fred L. Van Sickle, District Judge, Presiding
Submitted July 5, 2016**
Seattle, Washington
Before: KLEINFELD, TASHIMA, and M. SMITH, Circuit Judges.
Robin Roy appeals the denial of her claim for Supplemental Security
Income. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
FILED
JUL 07 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 9th Cir. R. 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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1. The ALJ permissibly accorded little weight to Dr. Chan’s opinion.
Though a treating physician, Dr. Chan’s opinion could be rejected for specific,
legitimate reasons. Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1463
(9th Cir. 1995). The ALJ noted that Dr. Toews disagreed, Dr. Chan’s opinion was
not consistent with Roy’s daily activities, and Dr. Chan’s opinion was not
consistent with his treatment notes showing that Roy’s condition improved with
medication. Dr. Chan observed in each visit that her mood and affect were normal.
See Valentine v. Comm’r, Soc. Sec. Admin., 574 F.3d 685, 692–93 (9th Cir.
2009); Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Absent
observations of unusual mood and affect, Dr. Chan’s diagnosis appeared to be
derived from Roy’s self reports. The ALJ found Roy was not credible as to the
extent of her symptoms, so the record supported rejection of a diagnosis based on
self reports. See id. The ALJ’s rationale was supported by substantial evidence.
2. The ALJ did not err by rejecting the opinions of Roy’s therapists. They
are “other sources,” 20 C.F.R. § 404.1513(d)(3), whose opinions could be rejected
for “reasons germane to each witness.” Molina v. Astrue, 674 F.3d 1104, 1111
(9th Cir. 2012) (quoting Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1224 (9th
Cir. 2010)). The record sufficiently supports the ALJ’s rationale that the
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therapists’ opinions were inconsistent with the notes from Roy’s mental health
treatment, because she improved with treatment, and the therapists failed to
account sufficiently for the effect of Roy’s drug abuse and failures to use
medications. Roy’s citation to Social Security Ruling 82–59 is inapposite, because
it regards when the Secretary can deny benefits for failure to follow treatment,
Roberts v. Shalala, 66 F.3d 179, 183 (9th Cir. 1995), and does not limit the reasons
for discounting the validity of certain evidence.
3. The ALJ erred by not considering the opinion of Dr. Eisenhauer, a
reviewing physician. See 20 C.F.R. § 404.1527(e)(2)(ii). She expressly stated that
she “has not considered” Dr. Eisenhauer’s opinion, because she thought Dr.
Eisenhauer was referring to “another individual of the same name.” But this
claimant’s Social Security Number and Client Identification Number appeared on
Dr. Eisenhauer’s records. Regardless, the error was harmless. “[T]he relevant
inquiry in this context is not whether the ALJ would have made a different decision
absent any error, it is whether the ALJ’s decision remains legally valid, despite
such error.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th
Cir. 2008) (citation omitted). Dr. Eisenhauer’s opinion was conclusory and brief,
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Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002), and contradicted by Dr.
Toews’s well-supported opinion.
4. The ALJ did not err regarding her characterization of Dr. Kester and Dr.
Flanagan’s opinions. The ALJ included the limitations identified by Dr. Kester in
the portion of his examination that reflects his opinion about Roy’s functional
limitations. The form which Dr. Kester completed expressly stated that the check-
the-box section should be explained in narrative form, pursuant to which Dr.
Kester explained that Roy could “understand and remember non-complex
instructions and execute simple tasks,” and would “work best with limited to
superficial public contact.”
5. The ALJ’s question to the vocational expert was not incomplete because
the ALJ properly discounted or construed the limitations Roy claims should have
been included in the ALJ’s question. See Stubbs-Danielson v. Astrue, 539 F.3d
1169, 1175–76 (9th Cir. 2008).
AFFIRMED.
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