NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RANDY JAMES DUNN, 

Plaintiff-Appellant, 

 v. 

NANCY A. BERRYHILL, Acting 

Commissioner Social Security, 

Defendant-Appellee.

No. 15-35107 

D.C. No. 6:14-cv-00266-HZ 

MEMORANDUM*

Appeal from the United States District Court

for the District of Oregon

Marco A. Hernandez, District Judge, Presiding

Submitted May 7, 2018**

Before: FARRIS, CANBY and LEAVY, Circuit Judges.

Randy Dunn appeals the district court’s judgment affirming the 

Commissioner of Social Security’s denial of Dunn’s application for social security 

supplemental security income and disability insurance benefits under Titles II and

XVI of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291. We 

 

* 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 9 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 15-35107 

review de novo, Ghanim v. Colvin, 736 F.3d 1154, 1159 (9th Cir. 2014), and we 

affirm. 

The ALJ gave a specific and legitimate reason for assigning little weight to

the opinion of treating psychiatrist Dr. Barrett and treating therapist Ms. Teixeira

because it was inconsistent with their treatment notes. Batson v. Comm’r Soc. Sec. 

Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (ALJ need not accept opinion of even 

treating physician if it is inadequately supported). Any error in the additional 

reasons provided by the ALJ were harmless. See, e.g., Parra v. Astrue, 481 F.3d 

742, 747 (9th Cir. 2007).

The ALJ gave the following specific and legitimate reasons for assigning 

little weight to the opinion of Dr. Steffey and Mr. Stanley because: (1) it was 

inconsistent with his activities; and (2) medical records contemporaneous to Dr. 

Steffey’s last contact with Dunn contradict the physical limitations cited in the 

assessment. Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (holding an 

ALJ may reject an opinion when the physician sets forth restrictions that “appear to 

be inconsistent with the level of activity that [the claimant] engaged in”);

Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (holding that an ALJ 

may reject a medical opinion when it is inconsistent with contemporaneous 

treatment notes). Any error in the ALJ’s additional reason was harmless because he 

identified other specific and legitimate reasons to discount their opinion. Molina v. 
3 15-35107 

Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).

The ALJ properly gave “little weight” to Dr. Charnecki’s opinion because 

she mostly refers to Dunn’s limitations in cold weather, not his maximum 

capabilities. The ALJ’s inference that Dr. Charnecki based her opinion on other 

treating sources’ notes is unsupported because she does not cite any other sources 

in her opinion. This error is harmless because the ALJ properly discounted her 

opinion because she emphasized Dunn’s limitations in cold weather. 

The ALJ gave significant weight to Dr. Bartol’s opinion and properly 

accounted for Dr. Bartol’s opinion by limiting Dunn to simple, repetitive, 1-2 step 

tasks. An ALJ’s RFC assessment of a claimant adequately captures restrictions 

related to concentration, persistence, or pace where the assessment is “consistent 

with restrictions identified in the medical testimony.” Stubbs-Danielson v. Astrue, 

539 F.3d 1169, 1174 (9th Cir. 2008). In Stubbs-Danielson, the Ninth Circuit held 

that an RFC of “simple, routine, repetitive” work was consistent with an examining 

doctor’s opinion that claimant can carry out “very short simple instructions.” Id. 

Thus, the ALJ’s RFC properly incorporated Dunn’s concentration deficits by 

limiting him to simple tasks. 

The ALJ properly found that Drs. Givi and Davies’s opinion supported his 

RFC of simple, repetitive, 1 to 2 step tasks. This adequately incorporated their 

opinion that Dunn’s anxiety lowered his test scores and he had no more than a mild 
4 15-35107 

limitation in any mental activity that did not involve complex task or instructions.

Batson v. Comm’r of the SSA, 359 F.3d 1190, 1193 (9th Cir. 2004).

The ALJ identified specific, clear and convincing reasons that are supported 

by substantial evidence for discounting Dunn’s testimony regarding the debilitating 

effects of his symptoms: his drug-seeking behavior and benign objective findings. 

See Lewis v. Astrue, 498 F.3d 909, 910 (9th Cir. 2007) (holding that drug-seeking 

behavior may undermine a claimant’s credibility because it suggests motivation to 

exaggerate symptoms in order to obtain drugs); Burch v. Barnhart, 400 F.3d 676, 

680 (9th Cir. 2005) (holding that an ALJ can consider a lack of supporting medical 

evidence when assessing credibility). 

The ALJ properly gave his mother Ms. Davis’s testimony only partial 

weight because it was inconsistent with the objective medical evidence. 

Inconsistency with medical evidence is a germane reason for discrediting lay 

witness testimony. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). Any 

error in the ALJ’s additional reason was harmless because the ALJ provided a 

germane reason. Molina, 674 F.3d at 1122 (upholding ALJ decision where error is 

inconsequential to the ultimate nondisability determination).

AFFIRMED.