                                                                               FILED
                            NOT FOR PUBLICATION
                                                                                APR 1 2020
                    UNITED STATES COURT OF APPEALS                          MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ALAN L. MEADOWS,                                 No.    18-35200

              Plaintiff-Appellant,               D.C. No. 3:17-cv-05223-MAT

 v.
                                                 MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,

              Defendant-Appellee.


                   Appeal from the United States District Court
                     for the Western District of Washington
                  Mary Alice Theiler, Magistrate Judge, Presiding

                            Submitted March 30, 2020**
                               Seattle, Washington

Before: McKEOWN, N.R. SMITH, and NGUYEN, Circuit Judges.

      Alan Meadows appeals the district court’s order affirming the Commissioner

of Social Security’s denial of disability benefits. We have jurisdiction pursuant to

28 U.S.C. § 1291, and we affirm.

      *
             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).
      “We review the district court’s decision sustaining the [Administrative Law

Judge’s (“ALJ”)] denial of social security benefits de novo and can reverse only if

the ALJ’s findings are based on legal error or are not supported by substantial

evidence in the record.” Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 2016).

Additionally, we “may not reverse an ALJ’s decision on account of a harmless

error.” Buck v. Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017).

1.    Substantial evidence supports the ALJ’s evaluation of the medical evidence.

First, the ALJ offered “specific and legitimate reasons” for discounting

Dr. Weston’s opinion, finding it was a conclusory opinion rather than an

evaluation of Meadow’s functioning. Carmickle v. Comm’r, Soc. Sec. Admin., 533

F.3d 1155, 1164 (9th Cir. 2008) (quoting Lester v. Chater, 81 F.3d 821, 830–31

(9th Cir. 1995)); see also Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).

Dr. Weston concluded that Meadows was not stable enough to work rather than

assessing Meadows’s functioning.

      Second, the ALJ did not err in discounting Dr. Warner’s opinion that

Meadows lived in a very sheltered and protective environment, because the opinion

was contrary to the record. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th

Cir. 2008). The ALJ did a thorough analysis of the record and highlighted the

inconsistences between Dr. Warner’s opinion and the medical record. For example,


                                          2
the ALJ noted that Meadows complained of doing his homework, because he was a

“busy man.” The ALJ also noted that Meadows reported that he would not be able

to attend some of his treatment sessions, because he would be traveling during the

summer.

      Third, as Meadows argues, the ALJ cited an erroneous reason for

discounting Dr. Spiro’s opinion regarding the dexterity of Meadows’s left hand.

However, Dr. Spiro’s other findings were inconsistent with his finding that

Meadows lost dexterity in his left hand. For example, Dr. Spiro found Meadows

had normal muscle strength in “all muscles of the left upper and lower extremities

with exception of the EHL muscle.” Thus, any error was harmless in light of Dr.

Spiro’s opinion as a whole. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir.

2012).

      Fourth, the ALJ gave “specific and legitimate reasons that are supported by

substantial evidence” for discounting Ms. Oliver’s opinion. Carmickle, 533 F.3d at

1164 (quoting Lester, 81 F.3d at 830–31). The ALJ validly discounted Ms.

Oliver’s opinion regarding Meadows’s foot impairment, because it was based on

Meadows’s subjective complaints, which were not reflected in the treatment

record. Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (holding that if a

physician’s opinion “[is] based ‘to a large extent’ on an applicant’s self-reports and


                                           3
not on clinical evidence, and the ALJ finds the applicant not credible, the ALJ may

discount” the opinion) (quoting Tommasetti, 533 F.3d at 1041). The ALJ also

validly discounted Ms. Oliver’s opinion regarding Meadows’s neck condition,

because it was inconsistent with the normal head and neck mobility findings made

by other treating physicians. See Tommasetti, 533 F.3d at 1041 (reasoning that an

ALJ can consider inconsistency with the medical record in rejecting an opinion).

      Fifth, the ALJ did not err in discounting the Department of Veterans

Affairs’s (“VA”) disability determination, because the ALJ gave “persuasive,

specific, [and] valid reasons for doing so that are supported by the record.”

McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). Specifically: (a) the

ALJ found Meadows was able to engage in “substantial gainful activity, working

18-hour days in a highly skilled occupation” while claiming the same symptoms he

now claims; (b) the ALJ found insufficient evidence of a change in Meadows’s

functioning or “intervening injuries or observable exacerbations”; and (c) the ALJ

gave little weight to the VA’s housebound finding, because the record clearly

indicates that Meadows is able to leave his home.

      Sixth, although the non-examining state agency physicians did not review

any evidence beyond August 2014, the ALJ did not err in giving great weight to

the physicians’ opinions. There is always some time lapse between a consultant’s


                                          4
report and the ALJ hearing and decision, and the Social Security regulations

impose no limit on such a gap in time. At the time they issued their opinions, the

non-examining experts had considered all the evidence before them, satisfying the

requirements set forth in 20 C.F.R. § 404.1527(c)(3).

      Additionally, the ALJ did not err in failing to include the findings of Dr.

Kraft and Dr. Clifford in the residual functional capacity (“RFC”), because the

RFC is consistent with the limitations opined by both doctors.

2.    The ALJ did not err in discounting Meadows’s testimony, because the ALJ

offered “specific, clear, and convincing reasons” supported by substantial evidence

for discounting Meadows’s testimony. See Trevizo v. Berryhill, 871 F.3d 664, 678

(9th Cir. 2017) (quoting Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014)).

The ALJ determined: (a) Meadows’s most recent job as a security contractor in

Afghanistan ended because the contract expired, not because he could no longer

perform the job; (b) Meadows applied for benefits before working in Afghanistan

for a year, and reapplied upon his return without any evidence that his condition

worsened during or after his time in Afghanistan; (c) Meadows’s allegations were

inconsistent with the medical record as a whole; (d) Meadows engaged in activities

inconsistent with his alleged limitations; and (e) Meadows’s allegations were




                                          5
inconsistent with his statements about his activities, lack of success with treatment,

use of a cane, and his use of alcohol.

3.    The ALJ provided germane reasons supported by substantial evidence to

reject Ms. Meadows’s lay-witness testimony. See Rounds v. Comm’r Soc. Sec.

Admin., 807 F.3d 996, 1007 (9th Cir. 2015). Specifically, the ALJ found that Ms.

Meadows’s statements: (a) were contradicted by Meadows’s ability to work in

Afghanistan in 2012-2013; (b) were inconsistent with the medical record and

Meadows’s activities; and (c) were very similar to Meadows’s testimony and

should be discounted for the same reasons his testimony was discounted.1

4.    The ALJ’s RFC and step-five findings are supported by substantial evidence,

because the ALJ reasonably weighed the record evidence and reasonably

accounted for all of Meadows’s limitations. Meadows’s arguments to the contrary

are simply derivative of his preceding arguments addressed and rejected above.



      1
         Meadows argues that the similarity of Ms. Meadows’s statements to his
own is not a germane reason to reject her testimony. However, precedent is clear
that an ALJ can reject lay-witness testimony if it is similar to the claimant’s own
subjective complaints and the ALJ already discounted the claimant’s testimony.
See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (“In
light of our conclusion that the ALJ provided clear and convincing reasons for
rejecting Valentine’s own subjective complaints, and because Ms. Valentine’s
testimony was similar to such complaints, it follows that the ALJ gave germane
reasons for rejecting her testimony.”).


                                           6
Thus, Meadows’s arguments fail. See Stubbs-Danielson v. Astrue, 539 F.3d 1169,

1175–76 (9th Cir. 2008).

      AFFIRMED.




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