Cobb Mutter v. Kilolo Kijakazi ( 2021 )


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  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                       OCT 13 2021
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    COBB LAVERNE MUTTER,                            No.    18-15877
    Plaintiff-Appellant,            D.C. No. 2:16-cv-02381-KJN
    v.
    MEMORANDUM*
    KILOLO KIJAKAZI, Acting Commissioner
    of Social Security,
    Defendant-Appellee.
    Appeal from the United States District Court
    for the Eastern District of California
    Kendall J. Newman, Magistrate Judge, Presiding
    Submitted October 8, 2021**
    Before: THOMAS, Chief Judge, HAWKINS and MCKEOWN, Circuit Judges.
    Cobb Laverne Mutter appeals the district court’s affirmance of the
    Commissioner of Social Security’s denial of his application for disability insurance
    benefits under Title II of the Social Security Act. We have jurisdiction under 28
    *
    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).
    U.S.C. § 1291 and 
    42 U.S.C. § 405
    (g). We review the district court’s decision de
    novo and will reverse only if the Administrative Law Judge’s (“ALJ”) findings are
    based on legal error or are not supported by substantial evidence. Attmore v.
    Colvin, 
    827 F.3d 872
    , 875 (9th Cir. 2016). We affirm.
    The ALJ provided specific, clear, and convincing reasons to discount
    Mutter’s symptom testimony as inconsistent with and unsupported by the record
    and based on a lengthy gap in treatment, conservative treatment, and evidence that
    his conditions were managed with medication. See Molina v. Astrue, 
    674 F.3d 1104
    , 1112 (9th Cir. 2012) (ALJ may discount a claimant’s symptom testimony
    based on inconsistencies); Tommasetti v. Astrue, 
    533 F.3d 1035
    , 1039-41 (9th Cir.
    2008) (ALJ may discount a claimant’s subjective complaints based on an
    “unexplained or inadequately explained failure to seek treatment or follow a
    prescribed course of treatment” or evidence of relief with conservative treatment);
    Burch v. Barnhart, 
    400 F.3d 676
    , 681 (9th Cir. 2005) (ALJ may consider a lack of
    corroborating medical evidence as one factor in the credibility determination); see
    also 
    20 C.F.R. § 404.1529
    (c)(3)(iv) (ALJ may account for the effectiveness of a
    claimant’s medication).
    The ALJ considered the Veterans Affairs(“VA”) disability rating, which
    cited and relied on the opinion of Dr. Geoffrey Hutchinson and provided specific,
    valid reasons to reject the disability rating as conclusory, lacking record support,
    2                                    18-15877
    and inconsistent with Mutter’s subsequent travels and missionary activity. See
    Berry v. Astrue, 
    622 F.3d 1228
    , 1236 (9th Cir. 2010) (ALJ properly discounted VA
    disability rating where evidence that post-dated the disability rating demonstrated
    improvement); Valentine v. Comm’r Soc. Sec. Admin., 
    574 F.3d 685
    , 695 (9th Cir.
    2009) (ALJ properly discounted VA disability rating where the record before the
    ALJ included evidence that undermined the disability rating and was not available
    to the VA at the time of its rating). Because the ALJ addressed the substance of
    Dr. Hutchinson’s opinion and provided specific and legitimate reasons to discount
    it, any error in not separately addressing Dr. Hutchinson’s opinion was harmless.
    See Ford v. Saul, 
    950 F.3d 1141
    , 1154 (9th Cir. 2020) (error is harmless where it is
    “inconsequential to the ultimate nondisability determination” (internal quotation
    marks and citation omitted)); see also 
    id. at 1154-55
     (ALJ may reject a medical
    opinion as inconsistent with claimant’s activities); Thomas v. Barnhart, 
    278 F.3d 947
    , 957 (9th Cir. 2002) (ALJ may reject a medical opinion that is conclusory and
    inadequately supported by clinical findings).
    The ALJ did not err by failing to address the VA’s notation that Mutter’s
    additional disability claims were independently ratable, where the administrative
    record does not include the VA determinations concerning these claims. By
    inquiring as to outstanding records and keeping the record open, the ALJ met his
    duty to inquire. See McLeod v. Astrue, 
    640 F.3d 881
    , 886 (9th Cir. 2011) (where
    3                                    18-15877
    the ALJ has reason to believe a VA disability rating exists, the ALJ has a duty to
    inquire).
    The ALJ did not err in assigning great weight to the 2014 opinions of
    consulting psychologist Troy Ewing as to Mutter’s mental functioning prior to his
    date last insured in 2009, where Mutter alleged ongoing disability and testified that
    his mental health condition remained the same. The ALJ reasonably incorporated
    the limitations Dr. Ewing assessed into its determination of Mutter’s residual
    functioning capacity (“RFC”). See Stubbs-Danielson v. Astrue, 
    539 F.3d 1169
    ,
    1174 (9th Cir. 2008) (ALJ reasonably translated limitations assessed into concrete
    work restrictions).
    The ALJ provided specific and legitimate reasons to assign little weight to
    the opinion of consulting psychologist Robert Morgan as inconsistent with and
    unsupported by the medical record, inconsistent with Mutter’s missionary work
    and daily activities, and based on Mutter’s subjective allegations. See Ford, 950
    F.3d at 1154-55 (“A conflict between a treating physician’s opinion and a
    claimant’s activity level is a specific and legitimate reason for rejecting the
    opinion.”); Tommasetti, 
    533 F.3d at 1041
     (ALJ may reject an opinion that is
    “inconsistent with the medical records” or based on the claimant’s properly
    discredited complaints); Thomas, 
    278 F.3d at 957
     (ALJ may reject an opinion that
    is conclusory and “inadequately supported by clinical findings”).
    4                                      18-15877
    The ALJ did not err in assigning great weight to the opinion of
    nonexamining medical advisor Dr. Cynthia Horn. See Thomas, 
    278 F.3d at 956-57
    (ALJ is responsible for resolving conflicts in the medical evidence and weighing
    medical opinions).
    Substantial evidence supports the ALJ’s RFC formulation. See 
    id. at 954
    (this court must uphold the ALJ’s rational interpretation of the evidence).
    AFFIRMED.
    5                                   18-15877