Robert Wilson, Jr. v. Andrew Saul ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 28 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT G. WILSON, Jr. No. 20-35198
Plaintiff-Appellant, D.C. No. 3:18-CV-01984
v. MEMORANDUM*
ANDREW SAUL, Commissioner of Social
Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted May 7, 2021
Portland, Oregon
Before: W. FLETCHER, BEA, and FRIEDLAND, Circuit Judges.
Dissent by Judge FRIEDLAND
Robert G. Wilson appeals from the district court’s order, which affirmed the
denial of Wilson’s application for disability insurance benefits under Title II of the
Social Security Act. In relevant part, Wilson alleges disability due to mental
impairments from August 4, 2014 through August 10, 2016. Wilson argues on
*
This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
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appeal that the administrative law judge (“ALJ”) erred by improperly rejecting
several medical opinions and concluding that Wilson had the residual functional
capacity to work as a janitor or bench assembler during the alleged disability period.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. Wilson first argues that the ALJ erred by rejecting Dr. Winifred Ju and
Dr. Irmgard Friedburg’s opinion that “[d]ue to low tolerance for frustration,
[Wilson] will occasionally respond inappropriately to changes at work and requires
supported transitions.” The ALJ gave “moderate weight” to the opinion of Dr. Ju
and Dr. Friedburg, who were nonexamining psychological consultants, because it
was “inconsistent with [Wilson’s] current activities.”
Even if the ALJ erred in his reasoning, the error was harmless because
substantial evidence supports the ALJ’s finding that Wilson had the residual
functional capacity to perform “light work” during the alleged disability period.
Despite Wilson’s alleged impairments, Wilson’s self-reporting during the alleged
disability period demonstrates that he was “able to perform a wide variety of
activities.” Cf. Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014) (“Engaging
in daily activities that are incompatible with the severity of symptoms alleged can
support an adverse credibility determination.”). Moreover, Dr. Donna Wicher, to
whom the ALJ gave “great” weight, examined Wilson and determined that he “was
able to perform complex mathematical calculations” and that he had only “mild
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deficits in his ability to perform activities of daily living, moderate deficits in social
functioning, and moderate deficits in concentration, persistence, and pace.” The
medical opinion of an examining physician, like Dr. Wicher, is generally “entitled
to greater weight than the opinion of a nonexamining physician,” like Dr. Ju or Dr.
Friedburg. See Buck v. Berryhill, 869 F.3d 1040, 1049–50 (9th Cir. 2017) (quoting
Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). Accordingly, notwithstanding
any alleged error, substantial evidence supports the ALJ’s ultimate conclusion that
Wilson was not disabled during the alleged disability period. See Ford v. Saul, 950
F.3d 1141, 1157 (9th Cir. 2020) (affirming denial of disability benefits and holding
that the ALJ’s error was harmless “because there [was] ample evidence in the record
supporting the ALJ’s conclusion”).
2. Wilson also argues that the ALJ erred by rejecting Dr. Slater Tai’s
opinion that Wilson’s alleged disability “would have caused him to miss work at
least two days per month on average and to be off task at least 20% of a fulltime
work day.” The ALJ gave “little weight” to the opinion of Dr. Tai, who treated
Wilson, because—among other reasons—“the medical record as a whole does not
support the severity of her opinions.”
Again, even if the ALJ erred in failing to provide a more specific reason for
discounting Dr. Tai’s opinion, the error was harmless. The numerous medical
opinions in the record on which the ALJ relied—and to which the ALJ gave “great”
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and “moderate” weight—all provided a brighter assessment of Wilson’s residual
functional capacity, compared to Dr. Tai’s particularly grim assessment. See Batson
v. Comm’r of the SSA, 359 F.3d 1190, 1195 (9th Cir. 2004) (“[A]n ALJ may discredit
treating physicians’ opinions that are conclusory, brief, and unsupported by the
record as a whole or by objective medical findings.” (internal citation omitted)); see
also Magallanes v. Bowen, 881 F.2d 747, 751–55 (9th Cir. 1989) (affirming denial
of disability benefits where ALJ rejected the opinions of two treating physicians
based on claimant’s testimony and the opinions of non-treating physicians). For
example, in contrast to Dr. Tai’s opinion that Wilson “was always limited” and
“frequently seriously limited” in his “ability to interact with others and maintain
concentration, persistence, and pace,” Dr. Wicher described Wilson’s limitations as
“moderate” and “mild.” Additionally, Dr. Ju and Dr. Friedburg opined that Wilson
“can sustain a routine” and “perform activities within a schedule,” concluding that
Wilson could “complete a normal work week.” Because substantial evidence
supports the ALJ’s ultimate conclusion that Wilson was not disabled during the
alleged disability period, any alleged error was harmless. See Brown-Hunter v.
Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (“[E]ven when the ALJ commits legal
error, we uphold the decision where that error is harmless, meaning that it is
inconsequential to the ultimate nondisability determination, or that, despite the legal
error, the agency’s path may reasonably be discerned, even if the agency explains its
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decision with less than ideal clarity.” (internal citation omitted)).
AFFIRMED.
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FILED
Wilson, Jr. v. Saul, No. 20-35198 MAY 28 2021
MOLLY C. DWYER, CLERK
FRIEDLAND, J., dissenting: U.S. COURT OF APPEALS
The majority concludes that the ALJ’s failure to provide a specific reason
for discounting Dr. Tai’s opinion was harmless. I disagree.
The ALJ was required to provide “specific and legitimate reasons” for
giving Dr. Tai’s opinion little weight. Lester v. Chater, 81 F.3d 821, 830 (9th Cir.
1995) (quotation marks omitted). Of the three specific reasons the ALJ provided,
two were based on factual errors and one was abandoned by the Commissioner in
his answering brief. The only remaining reason that the ALJ gave for discounting
Dr. Tai’s opinion—that “the medical record as a whole does not support the
severity of her opinions”—was not sufficiently specific to qualify as a “specific
and legitimate” reason. See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir.
2014) (quotation marks omitted).
This error was not harmless. Although the majority’s approach suggests
otherwise, we may not look to the remainder of the record to infer additional
reasons for rejecting Dr. Tai’s opinion that the ALJ himself did not provide.
Trevizo v. Berryhill, 871 F.3d 664, 677 n.4 (9th Cir. 2017); cf. Brown-Hunter v.
Colvin, 806 F.3d 487, 492 (9th Cir. 2015). Indeed, our requirement that an ALJ
must give “specific and legitimate reasons” for rejecting the opinions of treating
doctors would be toothless if we could simply furnish those reasons ourselves on
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harmless error review. And even if we could provide reasons on an ALJ’s behalf,
given the importance of Dr. Tai’s opinion as Wilson’s treating psychiatrist, I would
not be able to confidently conclude that the ALJ would have reached the same
decision if not for his errors. See Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir.
2015).
For the foregoing reasons, I respectfully dissent.
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