NOT FOR PUBLICATION FILED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. 1 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

2 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”

3 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

4 decision with less than ideal clarity.” (internal citation omitted)).

AFFIRMED.

5

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

1 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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