                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                             FILED
                            FOR THE NINTH CIRCUIT                              APR 10 2015

                                                                          MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS

LINDA BUSTAMANTE,                                No. 13-15152

              Plaintiff - Appellant,             D.C. No. 2:12-cv-00075-NVW

  v.
                                                 MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security Administration,

              Defendant - Appellee.


                   Appeal from the United States District Court
                            for the District of Arizona
                     Neil V. Wake, District Judge, Presiding

                      Argued and Submitted March 12, 2015
                           San Francisco, California

Before: BERZON, BYBEE, and OWENS, Circuit Judges.

       Linda Bustamante appeals the district court’s judgment affirming the

Commissioner of Social Security’s denial of her application for disability

insurance benefits under Title II of the Social Security Act. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Bustamante’s main contention is that the ALJ erred by rejecting the opinion

of a state agency examining psychiatrist in favor of the opinion of a nonexamining

state agency reviewer. In particular, Bustamante argues that the ALJ improperly

relied on her failure to seek treatment and her noncompliance with the treatment

she did receive to reject the examining psychiatrist’s opinion that she has disabling

depression. Though Bustamante is correct that failure to seek or comply with

treatment is an impermissible ground for rejecting a doctor’s diagnosis of mental

illness when the failure is attributable to the mental illness, see Regennitter v.

Comm’r of the Soc. Sec. Admin., 166 F.3d 1294, 1299-300 (9th Cir. 1999), there is

“no medical evidence that [Bustamante’s] resistance was attributable to her mental

impairment rather than her own personal preference,” Molina v. Astrue, 674 F.3d

1104, 1114 (9th Cir. 2012). As a result, the ALJ did not err and provided “specific

and legitimate reasons that are supported by substantial evidence” for rejecting the

opinion of the examining psychiatrist. Chaudhry v. Astrue, 688 F.3d 661, 671 (9th

Cir. 2012). Any reliance on other, potentially improper reasons was harmless. See

Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008).

      Bustamante also contends that the ALJ erred by rejecting her symptom

testimony. The ALJ, however, provided at least two reasons supported by

substantial evidence for rejecting her testimony: (1) her shifting designation of her


                                           2
primary disability; and (2) her inconsistent explanations of why she left her job.

See Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007) (“Factors that an ALJ may

consider in weighing a claimant’s credibility include . . . inconsistencies in

testimony . . . .”). Together these constitute “clear and convincing reasons” for

rejecting Bustamante’s symptom testimony. See id. at 635 (internal quotation

mark omitted). Again, any reliance on other, potentially impermissible reasons

was harmless. See Carmickle, 533 F.3d at 1162-63.

      Bustamante’s final contention is that the ALJ exhibited improper bias

against her. She bases this argument exclusively on a comment the ALJ made at

the beginning of her hearing concerning her fibromyalgia claim. Although this

comment may have been ill advised, “the ALJ’s behavior, in the context of the

whole case,” was not “so extreme as to display clear inability to render fair

judgment.” Rollins v. Massanari, 261 F.3d 853, 858 (9th Cir. 2001) (quoting

Liteky v. United States, 510 U.S. 540, 551 (1994)) (internal quotation marks

omitted); see also Bayliss v. Barnhart, 427 F.3d 1211, 1215-16 (9th Cir. 2005)

(“[We] have rejected allegations that due process was violated when isolated parts

of an ALJ’s conduct were challenged but the record as a whole showed

fundamental fairness for the litigants.”). Her claim of bias thus fails.

      AFFIRMED.


                                           3
                                                                                FILED
Bustamante v. Colvin, No. 13-15152                                              APR 10 2015

                                                                           MOLLY C. DWYER, CLERK
BERZON, Circuit Judge, dissenting:                                           U.S. COURT OF APPEALS



      I respectfully dissent.

      It is sometimes “reasonable for [an Administrative Law Judge (“ALJ”)] to

conclude that the level or frequency of treatment [is] inconsistent with the level of

complaints” a claimant asserts or a medical expert finds. Molina v. Astrue, 674

F.3d 1104, 1114 (9th Cir. 2012) (internal quotation marks omitted). But no

reasonable factfinder could doubt that Bustamante is severely depressed, as

evidenced by (1) her recent suicide attempt; (2) her multiple reported prior

attempts; (3) her persistent suicidal ideation; and (4) her post-suicide-attempt

diagnosis, by her treating psychiatric clinic, of “major depressive disorder,

recurrent episode, severe.” Indeed, Bustamante’s recent suicide attempt and major

depression diagnosis occurred after both mental health opinions discussed by the

ALJ were rendered, serving strongly to corroborate the examining doctor’s opinion

the ALJ rejected, and severely to undermine the paper-review opinion the ALJ

credited.

      Furthermore, “an adjudicator must not draw any inferences about an

individual’s symptoms and their functional effects from a failure to seek or pursue

regular medical treatment without first considering any explanations that the

individual may provide, or other information in the case record, that may explain
infrequent or irregular medical visits or failure to seek medical treatment.” Orn v.

Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (internal quotation marks omitted).

Here, Bustamante testified that her medication was not “really working” and that

she was unable to return to mental health treatment because of “a long waiting

list.” There is no indication the ALJ considered her explanations. And the record

as a whole, despite the absence of a doctor’s explicit statement, suggests that

Bustamante did not pursue treatment more actively because she was depressed.

      Given all of these reasons to credit, rather than discredit, Doctor Steingard’s

evaluation of Bustamante’s likely vocational impairment on account of her

depression, it is clear to me that Bustamante’s failure to pursue treatment for her

depression could support the ALJ’s decision only on the separate policy ground

that “[i]mpairments that can be controlled effectively with medication are not

disabling for the purpose of determining eligibility for SSI benefits.” Warre v.

Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). But the ALJ

made no finding that Bustamante’s depression could be controlled effectively, nor

was there evidence in the record to support such a finding. Cf. Orn, 495 F.3d at

637; Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). Thus, Bustamante’s

failure to pursue treatment for her depression was not a legitimate reason to reject

the psychiatrist’s opinion. The ALJ’s only other specific reason for rejecting that

                                          2
opinion, that Bustamante demonstrated no cognitive deficits, was off-point as

depression is at issue, for reasons we recently surveyed. See Ghanim v. Colvin,

763 F.3d 1154, 1164 (9th Cir. 2014).

      Finally, the ALJ offered no clear and convincing reason for rejecting

Bustamante’s symptom testimony, at least as to her depression. That her own

designation of her primary disability shifted also does nothing to cast doubt on the

well-documented fact that she was severely depressed for at least a large part of the

pertinent period. As for her supposedly inconsistent testimony regarding her

reason for leaving her job, her various statements, while sometimes incomplete, are

all consistent with her fullest explanation of the end of her employment: “I missed

a lot of work due to the pain, and I was unable to perform my duties. . . . I was

released due to my poor attendance.” Absent clear and convincing reasons, I

would hold that the ALJ erred in discrediting Bustamante’s testimony, at least as to

her depression.

      Because the ALJ “failed to provide legally sufficient reasons for rejecting”

the psychiatrist’s opinion and Bustamante’s testimony, Garrison v. Colvin, 759

F.3d 995, 1020 (9th Cir. 2014), I would remand for a calculation of benefits.1

      1
        I note, however, that there is pending en banc activity in two cases
involving our credit-as-true doctrine. See Burrell v. Colvin, 775 F.3d 1133 (9th
Cir. 2014); Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090 (9th Cir.
                                          3
2014).
         4
