Dwight Johnston, Jr. v. Kilolo Kijakazi ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 4 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DWIGHT D. JOHNSTON, Jr., No. 20-36109
Plaintiff-Appellant, D.C. No. 3:18-cv-01648-CL
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Mark D. Clarke, Magistrate Judge, Presiding
Submitted August 2, 2023**
San Francisco, California
Before: O’SCANNLAIN, SILVERMAN, and JOHNSTONE, Circuit Judges.
Dwight D. Johnston, Jr., appeals pro se from the district court’s judgment
affirming the Commissioner of Social Security’s decision denying his application
for disability insurance benefits and supplemental security income under Titles II
*
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).
and XVI of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291and 42 U.S.C. § 405(g). We review de novo, Attmore v. Colvin, 827 F.3d 872, 875
(9th Cir. 2016), and we affirm.
The Administrative Law Judge (ALJ) did not err in evaluating the medical
evidence. See Ford v. Saul, 950 F.3d 1141, 1153–54 (9th Cir. 2020) (this court will
reverse only if the ALJ’s decision “contains legal error or is not supported by
substantial evidence” (internal quotation marks and citation omitted)). Substantial
evidence supports the ALJ’s findings that Johnston required only “conservative
treatment” for his gastrointestinal illnesses and that findings on mental status exam
were largely “unremarkable.” See id. at 1156 (this court must uphold the ALJ’s
rational interpretation of the evidence). We do not consider the medical and
photographic evidence attached to Johnston’s opening brief that is not part of the
administrative record. See 42 U.S.C. § 405(g) (judicial review is based “upon the
pleadings and transcript of the record”).
We reject Johnston’s contention that the ALJ committed harmful error at
step two by failing to list various conditions, including gastroesophageal reflux
disease, Barrett’s esophagus, hiatal hernia, and bipolar disorder, as severe
impairments. Because the ALJ resolved this step in Johnston’s favor and
considered all of Johnston’s pain and mental health symptoms in the remainder of
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the analysis, any alleged error was harmless. See Buck v. Berryhill, 869 F.3d 1040,
1049 (9th Cir. 2017).
The ALJ provided specific and legitimate reasons to assign moderate weight
to the controverted opinion of consulting psychologist Molly McKenna as not
entirely consistent with or supported by the medical record. See Ford, 950 F.3d at
1154. The ALJ provided germane reasons to discount the opinion of treating
counselor Jacob Moss as inconsistent with and lacking support from the record.
See Revels v. Berryhill, 874 F.3d 648, 655 (9th Cir. 2017) (ALJ must provide
germane reasons to reject an “other source” opinion). The ALJ provided specific
and legitimate reasons to assign no weight to treating physician Peter Mahr’s
concurrence with counselor Moss’s opinion for the same reasons, and because Dr.
Mahr’s concurrence was conclusory and lacked explanation. See Ford, 950 F.3d at
1154 (ALJ need not accept a conclusory opinion). The ALJ likewise provided a
specific and legitimate reason to assign no weight to Dr. Mahr’s statement
concerning Johnston’s ability to enter vocational rehab because it provided no
information concerning Johnston’s functional capacity. See id. at 1156 (ALJ may
reject an opinion for failure to provide information that is useful for determining
the claimant’s functional capacity).
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The ALJ provided specific, clear, and convincing reasons to discredit
Johnston’s symptom testimony as inconsistent with the medical record and with
Johnston’s activities. See Ahearn v. Saul, 988 F.3d 1111, 1116–17 (9th Cir. 2021).
We decline to consider Johnston’s remaining contentions because he failed
to raise them before the district court. See Smartt v. Kijakazi, 53 F.4th 489, 500–01
(9th Cir. 2022) (issues not raised to the district court generally are waived).
We deny all pending motions.
AFFIRMED.
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