James Coble v. Kilolo Kijakazi ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 6 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES D. COBLE, No. 21-35371
Plaintiff-Appellant, D.C. No. 3:20-cv-05323-BAT
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Brian Tsuchida, Magistrate Judge, Presiding
Argued and Submitted March 7, 2022
Portland, Oregon
Before: GRABER and VANDYKE, Circuit Judges, and REISS,** District Judge.
Plaintiff James D. Coble timely appeals the district court’s judgment
affirming the Commissioner of Social Security’s denial of disability benefits. We
review de novo the district court’s order and “will disturb the denial of benefits
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Christina Reiss, United States District Judge for the
District of Vermont, sitting by designation.
only if the decision ‘contains legal error or is not supported by substantial
evidence.’” Ford v. Saul, 950 F.3d 1141, 1153–54 (9th Cir. 2020) (quoting
Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)). We affirm.
1. Substantial evidence supports the administrative law judge’s (“ALJ”)
rejection of the opinions of a psychologist and a mental health therapist in favor of
the opinions of two psychologists and a physician. Because Coble filed his claim
after March 27, 2017, the Commissioner’s revised regulation for evaluating
medical opinions governs. See 20 C.F.R. § 416.920c; see also Woods v. Kijakazi,
No. 21-35458, 2022 WL 1195334, at *3–4 (9th Cir. Apr. 22, 2022) (holding that
the regulation displaces our earlier guidance on how an ALJ must assess medical
opinions).1 The ALJ applied the correct legal standard under 20 C.F.R. § 416.920c,
explained how persuasive he found each medical opinion based on its
supportability and consistency with the record, and made “inferences reasonably
drawn from the record[.]” Tommasetti, 533 F.3d at 1038 (quoting Batson v.
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Coble challenges whether the revised regulation complies with the Administrative
Procedure Act, but he forfeited this argument by raising it for the first time in his
reply brief. See Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2017) (“[A]t
least when claimants are represented by counsel, they must raise all issues and
evidence at their administrative hearings in order to preserve them on appeal.”
(internal quotation marks omitted)); see also Paladin Assocs., Inc. v. Mont. Power
Co., 328 F.3d 1145, 1164 (9th Cir. 2003) (noting that “we ordinarily will not
consider matters on appeal that are not specifically and distinctly argued in an
appellant’s opening brief” (citing Kim v. Kang, 154 F.3d 996, 1000 (9th Cir.
1998))).
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Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004)).
2. Substantial evidence supports the ALJ’s discounting of Coble’s testimony
regarding the intensity, persistence, and limiting effects of his symptoms, and the
ALJ gave “specific, clear and convincing reasons” for rejecting the testimony.
Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (internal quotation marks
omitted). For example, although Coble testified that his asthma was triggered by
general physical activity and pulmonary irritants and was not well controlled by
medication, the ALJ found that medical evidence undermined Coble’s claims of
disabling limitations. In 2016, Coble told a treating provider he had not had an
asthma attack since 2007 or 2008. Spirometry testing showed only “[m]ild airway
obstruction[,]” and chest and lung examinations were largely normal throughout
the relevant period. Even after his exposure to fire smoke in 2018 caused increased
symptoms, Coble’s asthma remained “[s]table” and his symptoms were “relieved
by use of an inhaler[.]”
Similarly, Coble testified that he is unable to leave home for lengthy time
periods or interact with others, has poor concentration and memory, and
experiences regular and debilitating anxiety attacks. The ALJ permissibly found
that Coble’s activities, including going to a food festival, performing music in a
coffee shop, reconnecting with friends, and frequently going out in public, were
inconsistent with his claims of debilitating psychological symptoms. See Ghanim
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v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014) (“Engaging in daily activities that
are incompatible with the severity of symptoms alleged can support an adverse
credibility determination.”). The ALJ further found that Coble’s significant
improvement with treatment was incongruous with his testimony. The ALJ
thoroughly and accurately described Coble’s “symptoms, course of treatment, and
bouts of remission, and thereby chart[ed] a course of improvement[.]” Garrison,
759 F.3d at 1018.
3. Substantial evidence supports the Appeals Council’s denial of review
despite Coble’s submission of an April 2019 medical opinion from Dr. Terilee
Wingate. To the extent Dr. Wingate’s opinion is based on a new examination of
Coble, it postdates the ALJ’s decision and does not “relate[] to the period on or
before the ALJ’s decision.” Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d
1157, 1162 (9th Cir. 2012) (citing 20 C.F.R. § 404.970(b)). The April 2019
opinion is also substantially similar to Dr. Wingate’s 2016 opinion, which was
considered by the ALJ, rendering the later opinion cumulative. See 20 C.F.R.
§ 404.970(a)(5) (providing for remand in light of new evidence only if there is “a
reasonable probability that the additional evidence would change the outcome of
the decision”).
AFFIRMED.
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