Albert Gilding, Jr. v. Kilolo Kijakazi ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 16 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALBERT GILDING, JR., No. 20-15508
Plaintiff-Appellant, D.C. No. 2:18-cv-02459-JAM-CKD
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted March 16, 2023**
Before: D. NELSON, BERZON, and CLIFTON, Circuit Judges.
Albert Gilding, Jr., 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 de novo the Administrative
Law Judge (“ALJ”)’s decision for substantial evidence and legal error. Attmore v.
Colvin, 827 F.3d 872, 875 (9th Cir. 2016). If the evidence is “susceptible to more
than one rational interpretation,” we are required to affirm. Id. (citation omitted).
We affirm.
Substantial evidence supports the ALJ’s decision to give “little evidentiary
weight” to the opinion of Gilding’s psychiatrist, Dr. Swati Rao, who treated
Gilding for seven months when he lost his primary health insurance, because the
ALJ offered “specific and legitimate” reasons in the record for discounting it.
Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). The ALJ reasonably
found Dr. Rao’s opinion inconsistent with the medical evidence of improvement in
Gilding’s mental health condition, which included Dr. Rao’s own subsequent
finding that Gilding was “much improved” on medication.
The ALJ also properly relied on the contemporaneous opinion of
consultative examiner Dr. Lenore Tate, who found Gilding considerably less
impaired than Dr. Rao had. Because Dr. Tate’s opinion was based on independent
clinical findings, her nontreating opinion may be considered substantial evidence.
See Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citing Miller v.
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Heckler, 770 F.2d 845, 849 (9th Cir. 1985)).
Any error in the ALJ’s remaining reasons for assigning little weight to Dr.
Rao’s opinion was harmless because those reasons were “inconsequential to the
ultimate nondisability determination” given the other rationales upon which the
ALJ relied. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir.
2006).
Contrary to Gilding’s claims, the ALJ’s determination of Gilding’s residual
function capacity (RFC) was not undermined because it failed to accord
completely with any of the opinions in the record. The ALJ is “responsible for
translating and incorporating clinical findings into a succinct RFC.” Rounds v.
Comm’r, Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (citing Stubbs–
Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008)). The ALJ’s RFC
“applied the proper legal standard and [was] supported by substantial evidence,”
such as medical opinions in the record apart from those of Dr. Rao. Bayliss, 427
F.3d at 1217 (citation omitted).
AFFIRMED.
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