Mark Maiorino v. Kilolo Kijakazi ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 9 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK LOUIS MAIORINO, No. 19-55599
Plaintiff-Appellant, D.C. No. 2:17-cv-07388-SP
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Sheri Pym, Magistrate Judge, Presiding
Argued and Submitted May 20, 2022
Pasadena, California
Before: MILLER and COLLINS, Circuit Judges, and KORMAN,** District Judge.
Mark Louis Maiorino appeals from the district court’s decision affirming the
Commissioner of Social Security’s denial of his applications for disability
insurance benefits under Title II and Title XVI of the Social Security Act. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review the district court’s decision de novo, and we must affirm the
decision of the administrative law judge (ALJ) if it is supported by substantial
evidence and based on the correct legal standards. Attmore v. Colvin, 827 F.3d 872,
875 (9th Cir. 2016). We will uphold the ALJ’s findings even if the evidence is
“susceptible to more than one rational interpretation.” Id. (citation omitted).
Substantial evidence supports the ALJ’s determination at step two that
Maiorino’s mental impairments were not severe because the record contained little
objective evidence of severe impairments. And even if the ALJ erred at step two,
any error was harmless because the ALJ went on to consider all asserted mental
impairments in formulating Maiorino’s residual functional capacity. See Buck v.
Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017).
Substantial evidence also supports the ALJ’s decision to discount the
opinion of Maiorino’s internist, Dr. Michel Yadegari, who opined that Maiorino
suffered several “marked” mental limitations. To be sure, the ALJ erred in
describing Dr. Yadegari’s treatment of Maiorino, stating that “there is no evidence
the claimant has ever received any regular ongoing treatment from Dr. Yadegari
(other than the two visits in January 2016 for low back pain), or any mental health
care whatsoever from this physician.” As the Commissioner acknowledges, that
statement was incorrect. But the ALJ also found Dr. Yadegari’s assessment was
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“completely disproportionate to the actual treatment notes.” That is an appropriate
basis for rejecting a treating physician’s opinion, see Batson v. Commissioner of
Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004), and it is supported by the
record. For example, on January 5, 2016—the same day on which Dr. Yadegari
completed the form assessing Maiorino as having “marked” limitations—Maiorino
saw Dr. Yadegari for back and shoulder pain. The physician’s notes make no
reference to providing any mental health services during that appointment,
although the “brief follow-up medication support service” form indicates that
Maiorino is “stable,” his “anxiety is controlled,” and he is “sleeping well.” The
ALJ also found that Dr. Yadegari’s opinion was inconsistent with the opinions of
state agency physicians and the overall record, which showed that Maiorino’s
depression following bypass surgery was controlled. See Thomas v. Barnhart, 278
F.3d 947, 957 (9th Cir. 2002).
Maiorino argues that the ALJ erred in discounting his symptom testimony.
Maiorino forfeited that argument because he did not raise it in the district court.
Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006). In any event, substantial
evidence supports the ALJ’s conclusion that Maiorino’s “allegations of severe
fatigue and other physical limitations are inconsistent with the medical evidence.”
Finally, Maiorino argues that the district court should have considered new
evidence that he presented to the Appeals Council. That argument, too, was
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forfeited, and it lacks merit because the new evidence pertained to a period after
the ALJ’s decision. See Shaibi v. Berryhill, 883 F.3d 1102, 1110 (9th Cir. 2017)
(“[A] claimant may raise new evidence . . . before the Appeals Council, provided
that the evidence is both relevant and ‘relates to the period on or before the ALJ’s
decision.’” (quoting Brewes v. Commissioner of Soc. Sec. Admin., 682 F.3d 1157,
1162 (9th Cir. 2012)) (emphasis added)). For similar reasons, because our review
is limited to the record before the ALJ, we deny the motion to supplement the
record (Dkt. No. 26).
AFFIRMED.
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