NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIAL GRAMMER, 

Plaintiff-Appellant, 

 v. 

NANCY A. BERRYHILL, Acting 

Commissioner Social Security, 

Defendant-Appellee.

No. 16-35212 

D.C. No. 3:15-cv-05500-DWC 

MEMORANDUM*

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).

FILED

DEC 13 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 16-35212 

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).
3 16-35212 

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.
4 16-35212 

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, 
5 16-35212 

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

AFFIRMED.