Gaspar Villicana v. ANDREW M. SAUL, Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GASPAR VILLICANA,
Plaintiff-Appellant,
v.
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
No. 19-35077
D.C. No. 1:17-cv-03198-MKD
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Mary K. Dimke, Magistrate Judge, Presiding
Submitted March 11, 2021**
San Francisco, California
Before: McKEOWN, IKUTA, and BRESS, Circuit Judges.
Gaspar Villicana appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of supplemental security income benefits.
“We review a district court’s judgment upholding the denial of social security
* 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).
FILED
MAR 15 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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benefits de novo” and “set aside a denial of benefits only if it is not supported by
substantial evidence or is based on legal error.” Bray v. Comm’r of Soc. Sec. Admin.,
554 F.3d 1219, 1222 (9th Cir. 2009) (quotations omitted). We have jurisdiction
pursuant to 28 U.S.C. § 1291 and affirm.
1. The Administrative Law Judge (“ALJ”) gave specific, clear, and
convincing reasons supported by substantial evidence for finding Villicana’s
symptom testimony not credible. See Garrison v. Colvin, 759 F.3d 995, 1010, 1014–
15 (9th Cir. 2014). Substantial evidence in the record, including from Villicana’s
long-term primary care provider, supported the ALJ’s determination that Villicana
engaged in “manipulative,” “drug-seeking” behavior in the course of seeking
treatment. Because a claimant’s “reputation for truthfulness” is relevant to
“weighing [his] credibility,” this finding formed an adequate basis for the ALJ to
discount Villicana’s testimony. Thomas v. Barnhart, 278 F.3d 947, 958–59 (9th Cir.
2002) (quotations omitted).
The ALJ also gave additional, specific reasons for rejecting Villicana’s
symptom testimony, including that objective medical evidence shows that
Villicana’s symptoms were not as disabling as he claimed, that Villicana’s activities
were not consistent with his allegations of severely limiting symptoms, and that
Villicana’s testimony was at times materially inconsistent. Substantial evidence
supports these determinations as well. See id. at 959.

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2. Substantial evidence supports the ALJ’s determination to give “no weight”
to the report of Jeff Blair, a licensed mental health counselor. We will assume that
our decision in Gomez v. Chater, 74 F.3d 967 (9th Cir. 1996), remains good law
following the repeal of former 20 C.F.R. § 416.913(a)(6). See Molina v. Astrue, 674
F.3d 1104, 1111 n.3 (9th Cir. 2012) (reserving this issue), superseded by regulation
on other grounds. Even so, there is insufficient evidence to demonstrate that Blair
was “work[ing] closely under the supervision of [an acceptable medical source]
and . . . was acting as an agent of” that source, as Gomez requires. 74 F.3d at 971;
see also Molina, 674 F.3d at 1111.
Because Blair’s report did not reflect the opinion of an acceptable medical
source, the ALJ needed only to provide a germane reason for rejecting it. Molina,
674 F.3d at 1111. The ALJ did so here, because an “ALJ may permissibly reject
check-off reports that do not contain any explanation of the bases of their
conclusions.” Id. (quotations omitted and alterations accepted). The ALJ also
relatedly determined that Blair had not “describe[d] any connection between his
suggestions of severe and extreme limitations and [Villicana’s] treatment records.”
These explanations, which were based on Blair’s report, permitted the ALJ to give
that report no weight.
3. The ALJ did not err in giving little weight to the 2014 psychological
evaluation completed by Tae-Im Moon, PhD, an examining psychologist.

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Substantial evidence supported the ALJ’s conclusion that Moon’s report was
inconsistent with Villicana’s “activities, [his] normal psychiatric observations, and
the observations of his treating providers.” Record evidence (which the ALJ had
discussed earlier and cross-referenced in her discussion of Moon’s evaluation)
supports that finding. Because those reasons were specific and legitimate and were
sufficient to justify the ALJ’s conclusion, any minor errors in analysis, such as the
ALJ’s reliance on Villicana wearing sunglasses during Moon’s evaluation, were
harmless and do not affect our result. See Buck v. Berryhill, 869 F.3d 1040, 1048–
1050 (9th Cir. 2017).
4. The ALJ did not err in crediting reports from non-examining psychologists
John F. Robinson, PhD, and Edward Beaty, PhD. “The opinions of . . . non-
examining physicians may . . . serve as substantial evidence when the opinions are
consistent with independent clinical findings or other evidence in the record.”
Thomas, 278 F.3d at 957. The ALJ explained how Robinson and Beaty’s
conclusions were consistent with evidence in the record, for instance, that Villicana
was able to engage in various social activities. The ALJ could therefore credit
Robinson and Beaty’s opinions over Moon’s, particularly given the limitations with
Moon’s analysis described above. In addition, the ALJ also sufficiently explained
why Dr. Cooper’s report was entitled to “no weight,” as it “d[id] not describe
[Villicana’s] functioning during the relevant period.”

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AFFIRMED.

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