RICHARD ANTHONY RIVERS, Sr. v. NANCY A. BERRYHILL, Acting Commissioner Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD ANTHONY RIVERS, Sr.,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
No. 16-35732
D.C. No. 2:15-cv-00101-FVS
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Fred L. Van Sickle, District Judge, Presiding
Submitted April 20, 2018**
Before: FARRIS, CANBY, and LEAVY, Circuit Judges.
Richard Rivers Sr. appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of his application for supplemental
security income under Title XVI of the Social Security Act. Reviewing de novo,
we may set aside a denial of benefits only if it is not supported by substantial
* 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
APR 24 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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evidence, or if the administrative law judge (“ALJ”) applied the wrong legal
standard. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). We affirm.
The ALJ provided specific, clear and convincing reasons for finding that
Rivers’ statements concerning the intensity, persistence, and limiting effects of his
symptoms were not entirely credible. First, the ALJ reasonably found that Rivers’
daily activities were inconsistent with the limitations he described. See Chaudhry
v. Astrue, 688 F.3d 661, 672 (9th Cir. 2012) (holding that when weighing
credibility, an ALJ may consider a claimant’s daily activities). Second, the ALJ
reasonably found that Rivers’ treatment was essentially conservative in nature, and
this was a valid basis for questioning Rivers’ credibility concerning the severity of
his condition. See Parra v. Astrue, 481 F.3d 742, 750-51d (9th Cir. 2007). Third,
the ALJ reasonably concluded that the medical record did not support Rivers’
claim that his chronic cough and asthma totally disabled him. See Burch v.
Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). The ALJ’s reliance on Rivers’
continued smoking, despite doctors’ warnings to the contrary, as a basis to
discredit his credibility was harmless error. See Bray v. Comm’r of Soc. Sec.
Admin., 554 F.3d 1219, 1227 (9th Cir. 2009).
The ALJ provided specific and legitimate reasons for discounting the
medical opinions of Dr. Loewen and Dr. John Arnold. Concerning evaluations of
Rivers’ mental impairments, the ALJ reasonably assigned greater weight to Dr. Jay

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Toew’s and Dr. Thomas McKnight’s opinions – that Rivers was not disabled from
mental health symptoms – than to Dr. Arnold’s opinion, which concluded that
Rivers was disabled by a major depressive order. First, the ALJ reasonably relied
on Dr. McKnight’s testimony that most of the symptoms that Dr. Arnold claimed
to have observed – such as Rivers’ poor sleep, nightmares, and limited interest –
could not have been observed by Dr. Arnold. Bray, 554 F.3d at 1228. Second, the
ALJ accurately noted that Dr. Arnold’s conclusions were an outlier where Dr.
Loewen never diagnosed any mental issues over his many years of treating Rivers.
See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2008)
(holding that an ALJ may discredit a physician’s opinion that is unsupported by the
record). Finally, the ALJ erred in noting that Dr. Arnold used a check box form,
Trevizo v. Berryhill, 871 F.3d 664, 677 at f.n. 4 (9th Cir. 2017). This error,
however, was harmless. Molina, 674 F.3d at 1121-22. Accordingly, the ALJ
provided specific and legitimate reasons for discounting Dr. Arnold’s opinion on
Rivers’ alleged mental impairments. Batson, 359 F.3d at 1195.
Concerning evaluation of Rivers’ physical limitations, the ALJ provided a
specific and legitimate reason for giving little weight to Dr. Loewen’s opinion that
Rivers was totally disabled due to severe cough, human papillomavirus, and
asthma. The ALJ reasonably concluded that Dr. Loewen’s opinion was
inconsistent with the less severe symptoms documented in his contemporaneous

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chart notes. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (holding
that a specific and legitimate reason for rejecting a physician’s opinion includes
inconsistency with medical records). As the Commissioner concedes, the ALJ
erred in discounting Dr. Loewen’s assessments because they were prepared as part
of a State of Washington Department of Social and Health Services report. Lester
v. Chater, 81 F.3d 821, 832 (9th Cir. 1995). Such error was harmless, however,
because the ALJ offered another valid reason for rejecting Dr. Loewen’s
conclusions. Molina, 674 F.3d at 1115.
AFFIRMED.

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