                           NOT FOR PUBLICATION                             FILED
                    UNITED STATES COURT OF APPEALS                         FEB 26 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ORILLIOUS LAMAR BLACKSHER, Jr.,                 No.    17-16727

                Plaintiff-Appellant,            D.C. No. 3:16-cv-05216-VC

 v.                                             MEMORANDUM*

NANCY A. BERRYHILL, Acting
Commissioner Social Security,

                Defendant-Appellee.

                   Appeal from the United States District Court
                     for the Northern District of California
                    Vince Chhabria, District Judge, Presiding

                          Submitted February 22, 2019**

Before: LEAVY, TALLMAN, and R. NELSON, Circuit Judges.

      Orillious Blacksher appeals the district court’s affirmance of the

Commissioner of Social Security’s denial of his application for disability insurance

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

Security Act. We review the district court’s decision to deny benefits de novo.


      *
             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).
Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 2016). “The Commissioner’s

decision to deny benefits will be overturned only if it is not supported by

substantial evidence or is based on legal error.” Morgan v. Comm’r of Soc. Sec.

Admin., 169 F.3d 595, 599 (9th Cir. 1999) (quotations and citations omitted). Even

if the ALJ “commits an error of law,” we must affirm the decision “if the error is

harmless.” Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir. 2015). Because the ALJ

committed errors that we cannot find harmless on this record, we reverse and

remand for further proceedings.

      The ALJ did not commit harmful error when evaluating Dr. Boroff’s and Dr.

Cary’s opinions. The ALJ provided specific and legitimate reasons for affording

treating psychologist Dr. Boroff’s opinion little weight. See Trevizo v. Berryhill,

871 F.3d 664, 675 (9th Cir. 2017). The ALJ did, however, err by discounting Dr.

Boroff’s opinion based on his failure to inquire about Blacksher’s substance abuse

and his lack of knowledge of Blacksher’s drug use after an appointment with him,

as well as by relying on Dr. Boroff’s failure to refer Blacksher for psychiatric

treatment and medication. Nevertheless, these errors were harmless because the

ALJ properly relied upon Blacksher’s gaps in treatment with Dr. Boroff and

inconsistencies between Blacksher’s behavior and Dr. Boroff’s observations. See

Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012).

      Neither has Blacksher shown that the ALJ erred in evaluating the opinion of


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consulting psychologist Dr. Cary. Contrary to Blacksher’s argument, an ALJ is not

required to provide reasons in support of incorporating a medical opinion into the

residual functional capacity determination. See Turner v. Comm’r of Soc. Sec.

Admin., 613 F.3d 1217, 1223 (9th Cir. 2010). Similarly, the ALJ reasonably

interpreted Dr. Cary’s opinion and testimony to mean that Blacksher’s symptoms

were more likely at listing level due to use of other substances rather than

Blacksher’s mental health symptoms alone. See Ryan v. Comm’r Soc. Sec. Admin.,

528 F.3d 1194, 1198 (9th Cir. 2008). Additionally, Blacksher does not explain

how an opinion that he meets Listing 12.03 if he is using marijuana supports a

finding that he is disabled, even absent controlled substance use issues, as required

to receive disability benefits. See 42 U.S.C. § 423(d)(2)(C); id. § 1382c(a)(3)(J).

      Next, the ALJ erred by failing to provide specific and legitimate reasons for

assigning only some weight to examining psychologist Dr. Kalich’s medical

opinion evidence. Specifically, the ALJ did not explain why he did not credit a

significant and probative portion of Dr. Kalich’s opinion stating, “it is likely that

[Blacksher’s] mental illness would be severe, even in the absence of substance

use.” See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (an ALJ must

address significant or probative evidence). And non-examining psychologist Dr.

Cary’s conclusion to the contrary that without substance abuse Blacksher would

have only “mild” restriction of daily activities is not enough on its own to meet the


                                           3
substantial evidence standard. See Lester v. Chater, 81 F.3d 821, 831 (9th Cir.

1995) (“The opinion of a nonexamining physician cannot by itself constitute

substantial evidence that justifies the rejection of the opinion of either an

examining physician or a treating physician.”); see also Ryan, 528 F.3d at 1201–

02. Because Dr. Kalich’s opinion goes to the level of Blacksher’s disability and

capacity independent of substance abuse, the ALJ did not properly address it, and

that opinion is not contradicted by substantial evidence in the record, we cannot

conclude the error was harmless. See Marsh v. Colvin, 792 F.3d 1170, 1172–73

(9th Cir. 2015) (holding an error was harmful where an ALJ failed to mention a

contrary opinion of a treating physician related to disability and remanding for

further proceedings).

      This error also pervades the ALJ’s application of the six-question inquiry to

determine the materiality of Blacksher’s substance use. Moreover, in applying that

materiality test, the ALJ stated that Blacksher’s “choice to continue substance

abuse effectively precludes him from demonstrating (as opposed to merely

alleging) that even without substance abuse he would be disabled under the Act.”

However, the ALJ’s reasoning that Blacksher categorically cannot establish a

disability absent sobriety is contrary to agency rulings. See SSR 13-2p, 2013 WL

621536, at *12; id. at *4 (“There does not have to be evidence from a period of

abstinence for the claimant to meet his or her burden of proving disability.”); see


                                           4
also Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012) (SSRs “do not carry the

force of law, but they are binding on ALJs nonetheless,” and “[t]hey reflect the

official interpretation of the SSA and are entitled to some deference as long as they

are consistent with the Social Security Act and regulations”) (citations and

quotations omitted). Although the ALJ may still find Blacksher’s substance abuse

is material to his disability on remand, we cannot conclude on this record that the

errors in applying the materiality test, taken together, were harmless.

       Finally, the ALJ did not commit harmful error in discounting the testimony

of Blacksher or his mother (“Ms. Blacksher”). As to Blacksher’s testimony, the

ALJ proffered clear and convincing reasons for discounting it, even if some

reasons were erroneous. The ALJ erred by citing Blacksher’s daily activities and

his gaps in treatment, as these reasons lack supporting explanation and substantial

evidentiary support, respectively. See Robbins v. Social Sec. Admin., 466 F.3d

880, 884 (9th Cir. 2006); Diedrich v. Berryhill, 874 F.3d 634, 638 (9th Cir. 2017).

However, the ALJ properly relied upon Dr. Cary’s opinion, which runs counter to

Blacksher’s symptom allegations, see Thomas v. Barnhart, 278 F.3d 947, 958-59

(9th Cir. 2002), and the fact that there is no medical evidence in the record from

Blacksher’s alleged onset date of August 1, 2009, through January 2012, see

Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). Because

substantial evidence supports the ALJ’s evaluation of Blacksher’s statements, these


                                          5
errors were harmless. See Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155,

1162 (9th Cir. 2008).

      Regarding the ALJ’s rejection of the lay testimony from Ms. Blacksher,

even assuming Ms. Blacksher’s error in misremembering the timelines for her

son’s employment does not constitute a germane reason to reject her testimony,

this error was harmless. Ms. Blacksher’s testimony was substantially similar to

that of her son. Because the ALJ provided clear and convincing reasons for

discounting Blacksher’s statements, “it follows that the ALJ also gave germane

reasons for rejecting” Ms. Blacksher’s similar testimony, and so any error was

harmless. See Valentine, 574 F.3d at 694.

      We remand on an open record for further proceedings so the ALJ can

reconsider the portion of Dr. Kalich’s opinion regarding the severity of Blacksher’s

impairments if he ceased substance abuse; properly apply the six-question

materiality inquiry without requiring a showing of sobriety; and conduct such

further proceedings consistent with this decision as the ALJ deems appropriate.

      REVERSED AND REMANDED WITH INSTRUCTIONS.




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