                            NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                         APR 24 2018
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

RICHARD ANTHONY RIVERS, Sr.,                     No.   16-35732

                Plaintiff-Appellant,             D.C. No. 2:15-cv-00101-FVS

 v.
                                                 MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,

                Defendant-Appellee.

                    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).
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


                                          2                                    16-35732
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


                                          3                                      16-35732
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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