                                                                             FILED
                            NOT FOR PUBLICATION                              SEP 13 2013

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



                            FOR THE NINTH CIRCUIT


JOHN W. CANTRALL,                                 No. 12-35061

              Plaintiff - Appellant,              D.C. No. 3:10-cv-05898-MJP

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

              Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Western District of Washington
                 Marsha J. Pechman, Chief District Judge, Presiding

                       Argued and Submitted August 28, 2013
                                Seattle, Washington

Before: HAWKINS, McKEOWN, and CLIFTON, Circuit Judges.

       John Cantrall (“Cantrall”) appeals the district court’s judgment affirming the

administrative law judge’s (“ALJ”) determination that denied Cantrall’s claim for

Social Security disability benefits. We have jurisdiction pursuant to 28 U.S.C. § 1291,

and review the district court’s decision affirming the ALJ’s denial of benefits de novo.


       *
        This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). We “reverse only if the

ALJ’s decision was not supported by substantial evidence in the record as a whole or

if the ALJ applied the wrong legal standard.” Molina v. Astrue, 674 F.3d 1104, 1110

(9th Cir. 2012). We affirm.

      The ALJ provided “specific and legitimate reasons that are supported by

substantial evidence in the record,” for rejecting Dr. Moore’s contradicted opinion

about Cantrall’s alcohol use. Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995).

Even assuming that the ALJ failed to address Dr. Moore’s opinion about Cantrall’s

marked limitations, and this aspect of his report was significant and probative such

that the ALJ was required to discuss it, Howard ex rel. Wolff v. Barnhart, 341 F.3d

1006, 1012 (9th Cir. 2003), it appears any error was harmless, as the ALJ accounted

for similar opinions and Cantrall fails to argue how the marked limitations would alter

the residual functional capacity (“RFC”) or ultimate nondisability determinations. See

Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (“[T]he burden of showing that an error

is harmful normally falls upon the party attacking the agency’s determination.”).

      The ALJ gave “specific and legitimate reasons that are supported by substantial

evidence in the record” for rejecting Dr. Schneider’s contradicted GAF score as

representative of Cantrall’s capacity. Lester, 81 F.3d at 830–31. Moreover, assuming

the ALJ erred in failing to specifically mention Dr. Schneider’s opinion on Cantrall’s


                                          2
limitations, any such error was harmless. The ALJ accounted for Cantrall’s inability

to work with the public in the RFC, and acceptance of Dr. Schneider’s other assessed

marked limitation appears “inconsequential to the ultimate nondisability determination

in the context of the record as a whole.” Molina, 674 F.3d at 1122 (quoting Carmickle

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

marks omitted).

      Even assuming Dr. Carter’s opinion on Cantrall’s moderate limitations was

significant and probative evidence, and thus the ALJ erred in not discussing them

specifically, Howard ex rel. Wolff, 341 F.3d at 1012, such error was also harmless.

Additionally, assuming the ALJ was required to discuss Dr. Alvrod’s conclusion that

Cantrall’s functioning will present a “significant hurdle” to gainful employment, see

Hill v. Astrue, 698 F.3d 1153, 1159–60 (9th Cir. 2012), it was harmless because it was

“inconsequential to the ultimate nondisability determination in the context of the

record as a whole.” Molina, 674 F.3d at 1122 (quoting Carmickle, 533 F.3d at 1162)

(internal quotation marks omitted).

      The ALJ’s assessment of the opinions of the Columbia River Mental Health

Services providers do not require reversal. The ALJ gave “germane” reasons, Molina,

674 F.3d at 1111, for rejecting Owen’s other source testimony, 20 C.F.R.

§ 404.1513(d)(1), noting that Cantrall’s functional capacity was more accurately


                                          3
reflected by the higher, post-alcohol treatment GAF scores. The ALJ likely erred in

not addressing the opinions of Dr. Shuey, Cantrall’s treating doctor. Lester, 81 F.3d

at 830. Though even assuming Dr. Shuey’s assessed GAF scores were significant,

probative evidence the ALJ was required to discuss, the ALJ’s omission was harmless.

Molina, 674 F.3d at 1122. Additionally, were we to consider Cantrall’s attribution of

error to the ALJ’s failure to address Sprague’s GAF score, Dream Palace v. Cnty. of

Maricopa, 384 F.3d 990, 1005 (9th Cir. 2004) (noting that we ordinarily decline to

consider arguments raised for the first time on appeal), we would conclude that any

error was also harmless.

      The ALJ’s failure to specifically address all of the moderate mental function

limitations assessed by nonexamining agency consultant Dr. Peterson, to the extent

he was even required to consider it, Vincent ex. rel. Vincent v. Heckler, 739 F.2d 1393,

1394–95 (9th Cir. 1984), was harmless error.

      After an ALJ determines “the claimant has presented objective medical

evidence of an underlying impairment which could reasonably be expected to produce

the pain or other symptoms alleged,” and “there is no evidence of malingering, the

ALJ can reject the claimant’s testimony about the severity of her symptoms only by

offering specific, clear and convincing reasons for doing so.” Lingenfelter v. Astrue,

504 F.3d 1028, 1036 (9th Cir. 2007) (internal quotation marks and citation omitted).


                                           4
The ALJ discredited Cantrall’s testimony to the extent it was inconsistent with the

ALJ’s assessed RFC, based on: (1) inconsistencies between Cantrall’s hearing

testimony and daily activities, and (2) an inconsistency within his hearing testimony.

      These two reasons were “specific, clear and convincing reasons” for the

rejection. Id. The ALJ’s finding that Cantrall’s claimed symptoms were inconsistent

with his daily activities, Molina, 674 F.3d at 1112–13, is supported by substantial

evidence in the record. Although the evidence of Cantrall’s activities could be

susceptible to an interpretation more favorable to Cantrall, the ALJ’s interpretation

was rational, and the panel must “uphold the ALJ’s decision where the evidence is

susceptible to more than one rational interpretation.” Burch v. Barnhart, 400 F.3d

676, 680–81 (9th Cir. 2005) (quoting Magallanes v. Bowen, 881 F.2d 747, 750 (9th

Cir. 1989)) (internal quotation marks omitted). Additionally, the ALJ’s finding that

Cantrall was not credible based on Cantrall’s inconsistent testimony about his

symptoms and treatment is supported by the record and is a specific, clear and

convincing reason for partially rejecting Cantrall’s testimony. Parra v. Astrue, 481

F.3d 742, 751 (9th Cir. 2007) (“[E]vidence of ‘conservative treatment’ is sufficient

to discount a claimant’s testimony regarding severity of an impairment.” (quoting

Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995))). Whether or not the ALJ

erred in also relying on Cantrall’s alcohol use in finding Cantrall not credible, in light


                                            5
of the remaining substantial evidence supporting the ALJ’s conclusion on credibility,

the ALJ’s reliance on this reason was harmless. Carmickle, 533 F.3d at 1162.

      Given the ALJ’s consideration of the record evidence, and the harmlessness of

any legal error, the ALJ’s RFC assessment was not in error, and the ALJ’s

nondisability determination is supported by substantial evidence, or “such relevant

evidence as a reasonable mind might accept as adequate to support [the ALJ’s]

conclusion.”1 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quoting Burch, 400

F.3d at 679).

      AFFIRMED.




      1
         The ALJ was not required to proceed to step five in the sequential evaluation
of Cantrall’s disability. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (“If we can find
that you are disabled or not disabled at a step, we make our determination or decision
and we do not go on to the next step.”).

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