NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

OMAR SOTO , Sr.,

Plaintiff

- Appellant,

v. ANDREW SAUL , Commissioner of Social Security, Defendant

- Appellee. No. 1 8

- 16288
D.C. No. 2:1 7

- cv - 0 0742

- DJH

MEMORANDUM *

Appeal from the United States District Court for the District of Arizona Diane J. Humetewa, District Judge, Presiding Submitted May 15 , 2020 * *
Before : LEAVY, TROTT, and SILVERMAN , Circuit Judges.
Omar Soto appeals the district court’s judgment affirming the Commissioner of Social Security’s denial of his application for disability insurance benefits under Title I I of the Social Security Act . We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We review de novo, Attmore v. Colvin , 827 F.3d 872, 875

* 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). 

# FILED

MAY 19 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

(9th Cir. 2016) , and we affirm

. The ALJ provided specific and legitimat e reasons supported by substantial evidence to discount the opinion of examining psychologist Dr. Van Eerd. Trevizo v. Berryhill , 871 F.3d 664, 675 (9th Cir. 2017)

. The ALJ properly gave little weight to Dr. Van Eerd’s conclusions because they were internally inconsistent, inconsistent with Soto’s reported a ctivities of daily living, and contradicted by the objective medical evidence. Despite Dr. Van Eerd’s conclusion that Soto could not complete a workweek without interruption due to fatigue and depressed mood, he found that Soto could interact, accept and follow instruction and criticism, respond effectively to workplace interactions, and that Soto was cooperative , maintained good eye contact, and had fair understanding and memory , adequate attention and concentration , and good judgment and insight. The AL J also found Dr. Van Eerd’s opinion inconsistent with Soto’s reported activities of daily living, including taking care of personal needs and chores, cooking, shopping, playing with his grandchildren, and attending family activities. Contrary to Soto’s

ar gument, the ALJ cited to these examples in the record when discussing Soto’s activities of daily living earlier in the opinion, albeit two pages earlier than in her discussion of Dr. Van Eerd’s opinion. The ALJ gave specific and legitimate reasons for assi gning little weight to treating physician Dr. Holmes’s opinion that Soto was completely disabled. See3

Trevizo , 871 F.3d at 675

. Substantial evidence supports this finding , including Dr. Holmes’s own treatment notes, which reflected that Soto’s neuropathy responded well to gabapentin, his mood responded well to Lexapro, and diabetic symptoms were improving with treatment. The ALJ properly considered the consistency of
Dr. Holmes’s RFC assessment with the record , 20 C.F.R. § 404.1527(c)(4) ; s ee also Batson v. Comm ’ r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (ALJ may discount a medical opinion that is not supported by the record as a whole or by objective medical findings); Burrell v. Colvin , 775 F.3d 1133, 1141 (9th Cir. 2014) (ALJ “may reject a treating physician’s opinion if it is based to a large extent on the claimant’s self

- reports that have been properly discounted as incredible”). Though Soto argues the length of the treating relationship was an insufficient basis upon which the A LJ rejected Dr. Holmes’s opinion, this was, permissibly, only one reason the ALJ cited for providing little weight to Dr. Holmes’s opinion. See 20 C.F.R. § 416.927(c)(2)(ii). Additionally, the ALJ properly assigned little weight to Dr. Holmes’s opinions because the checked

- box form was not supported by the medical evidence, including her own notes. Ford v. Saul , No. 18

- 35794, slip op. at 20 (9th Cir. filed Feb. 20, 2020) (“While an opinion cannot be rejected merely for being expressed as answers to a check

- the

- box questionnaire, Popa v. Berryhill , 872 F.3d 901, 907 (9th Cir. 2017), ‘the ALJ may4

permissibly reject check

- off reports that do not contain any explanation of the bases of their conclusions.’”) (quoting Molina , 674 F.3d at 1111). The ALJ provided specific and legitimate reasons for affording weight to the state examining and reviewing physicians. The ALJ afforded proper weight to these opinions because she noted t hat they were consistent with the objective medical evidence and Dr. Holmes’s own treatment notes. The ALJ did not err by discrediting Soto’s symptom testimony because she reasonably concluded that Soto’s statements about his daily activities were contradi cted in the record. See Orn v. Astrue , 425 F.3d 625, 639 (9th Cir 2007). The ALJ properly considered Soto’s “prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid.”
Tommasetti v. Astrue , 533 F.3d 1035, 1039 (9th Cir. 2008) . The ALJ noted specific inconsistencies between Soto’s reported daily activities on his function report, his testimony at the hearing, and elsewhere in his medical records. By citing these inconsistencies, which are s upported by substantial evidence, the ALJ provided a clear and convincing reason to discount Soto’s testimony. See id.
AFFIRMED.Soto, Sr. v . Saul , No. 18-16288

SILVER M AN, C irc uit Judge , disse nting:
Dr. Va n Ee rd wa s c hose n to c onduc t a n inde pe nde nt in-pe rson psy c hologic a l

e xa m ina tion of Soto. He

opine d tha

t Soto’ s de pre ssion would pre ve nt him from working a

re gula r workwe e k . The ALJ re

je c te d Va n Ee rd’ s opinion in fa

vor of the opinions of two c onsulta

nts who ne ve r sa

w Soto a nd only re vie we d som e re c ords. The ALJ ga

ve little we ight to Va

n Ee rd's workwe e k opinion, re a soning tha t it wa s

c ontra dic te d by h i s othe r findings, suc h a s Soto’ s a b ility to follow instruc tions, inte ra c t with c o-worke rs, e tc

. An ALJ’ s e va lua tion of the e vide n c e is e ntitle d to de fe re n c e a s long a s it is

re a s ona bly supporte d. In this c a se , the suppose d c o ntra dic tion re lie d on by the ALJ is not a c o ntra d ic tion a

t a l l. It is e ntire l y

pla usible tha t Soto is a ble to do his job – if

a nd whe n he shows up for work – but tha t the re a re da

y s tha t he c a n't ge t out of be d. The fa c t tha

t Soto c a n follow dire c tions a nd a c c e pt c ritic i sm

in the workpla c e (or fe e d a nd ba the him se lf) doe sn’ t a ddre ss Dr. Va n Ee rd’ s c onc lusion tha

t Soto’ s

“ fa tigue , de pre sse d m ood with a voida nc e a n d low m otiva

tion a n d distra c tion pe r phy sic a l distre ss” will ke e p him from re gula rly “ c om ple t [ing] a work we e k.” I don't se e a ny

ne c e ssa ry inc onsiste nc y

tha t would justify

re je c ting, on t

his ba sis,
Va n Ee rd’ s opinion. M a y be the re a re we re othe r re a s ons to ha ve give n little we ight
to Va n Ee rd’ s opinion, but the one a rtic ula te d by the ALJ is a

non se quitur. 

# FIL ED

MAY 19 2020
M OLLY C. DW Y E R, CLERK U. S. CO URT O F APPEALS- 2-

Furthe rm ore , this e rror c a nnot be de e m e d ha rm le ss be c a

use the voc a tiona l

e xpe rt opine d tha

t if Va n Ee rd’ s opinion we re a c c e pte d, Soto would be una ble to work. I would re ve rse
.