                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 13 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

DANIAL GRAMMER,                                 No.    16-35212

                Plaintiff-Appellant,            D.C. No. 3:15-cv-05500-DWC

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

                Defendant-Appellee.

                   Appeal from the United States District Court
                     for the Western District of Washington
                  David W. Christel, Magistrate Judge, Presiding

                          Submitted December 11, 2017**


Before:      THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit
Judges

      Danial Grammer appeals the district court’s decision affirming the

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

insurance benefits and supplemental security income under Titles II and XVI of the


      *
             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).
Social Security Act. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo, Rounds v. Comm’r of Soc. Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015),

and we affirm.

      The ALJ properly rejected Dr. Brown’s opinion based on specific and

legitimate reasons. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). First,

the ALJ properly rejected Dr. Brown’s opinion because Dr. Brown’s diagnostic

impression relied upon Grammer’s inaccurate factual statements regarding his

medical history. See Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012).

Second, the ALJ properly rejected Dr. Brown’s opinion because it was inconsistent

with evidence in the medical record showing a lack of suicidal behavior and other

symptoms in the absence of drugs or alcohol. See Tommasetti v. Astrue, 533 F.3d

1035, 1041 (9th Cir. 2008). Third, the ALJ properly rejected Dr. Brown’s opinion

because it was inconsistent with Grammer’s subsequent ability to work for three

months. See Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (concluding

that an ALJ can properly reject a treating physician’s opinion based on

inconsistencies with a claimant’s activities). Any error in relying on additional

reasons is harmless because the ALJ properly provided several specific and

legitimate reasons to reject Dr. Brown’s opinion. See Molina v. Astrue, 674 F.3d

1104, 1115 (9th Cir. 2012) (holding that error is harmless when it is

inconsequential to the ultimate nondisability determination).


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      The ALJ properly rejected Dr. Neims’s opinion that Grammer was “disabled

from SGA for the foreseeable 12 months” because it was a conclusory statement

regarding a determination of disability and not a medical opinion. See Hill v.

Astrue, 698 F.3d 1153, 1160 (9th Cir. 2012) (distinguishing conclusory statements

regarding disability from medical opinions regarding likelihood of ability to work

given a claimant’s medical impairments). Substantial evidence does not support the

ALJ’s reasons for rejecting the remainder of Dr. Neims’s opinion, but any error is

harmless because the Residual Functional Capacity adequately accounts for all the

limitations contained in Dr. Neims’s opinion. See Stubbs-Danielson v. Astrue, 539

F.3d 1169, 1173-74 (9th Cir. 2008) (concluding that no reasoning is required to

reject a physician’s opinion when the RFC adequately accounts for all limitations).

      The ALJ properly rejected the opinion of non-acceptable medical source Ms.

Chen based on inconsistencies with Grammer’s activities and inconsistencies with

the medical record. See Molina, 674 F.3d at 1111-12 (concluding that

inconsistency with medical evidence is a germane reason to reject a non-acceptable

medical source’s opinion); Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d

1155, 1164 (9th Cir. 2008) (including inconsistency with activities in germane

reasons to reject lay testimony). Any error in relying on additional reasons was

harmless because the ALJ provided germane reasons to reject Ms. Chen’s opinion.

See Molina, 674 F.3d at 1115.


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      The ALJ properly rejected Dr. Eisenhauer’s opinion because it relied

entirely on Dr. Brown’s evaluation, which the ALJ also validly rejected. See

Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (concluding that the ALJ

may reject an opinion that is inadequately supported by clinical findings).

      Substantial evidence from periods of non-use following Grammer’s

psychiatric hospitalizations supports the ALJ’s conclusion that drug or alcohol use

was material to Grammer’s disability. See Parra v. Astrue, 481 F.3d 742, 747-50

(9th Cir. 2007) (requiring the ALJ to determine whether the claimant would

continue to be disabled in the absence of drugs or alcohol). The ALJ properly

rejected the opinions of Dr. Brown, Dr. Neims, and Ms. Chen, and the ALJ did not

err by failing to discuss additional evidence that was neither significant nor

probative of Grammer’s functional limitations in the absence of drugs or alcohol.

See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (ALJ is not required to

discuss evidence that is neither significant nor probative).

      Substantial evidence supports the ALJ’s conclusion that Grammer requested

a supplemental hearing regarding Dr. Pelc’s opinion after the ten-day deadline that

the ALJ provided in the notice regarding Dr. Pelc’s opinion, and Grammer failed to

provide documentation showing that he received the notice more than five days

after it was mailed. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190,

1193 (9th Cir. 2004) (reasoning that when substantial evidence supports the ALJ,


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this Court should defer to the ALJ’s opinion).

      AFFIRMED.




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