Ivan Alekseyevets v. Carolyn W. Colvin

FILED
NOT FOR PUBLICATION MAY 02 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
IVAN L. ALEKSEYEVETS, No. 12-35079
Plaintiff - Appellant, D.C. No. 2:10-cv-02058-JCC
v.
MEMORANDUM *
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Argued and Submitted April 12, 2013
Seattle, Washington
Before: TASHIMA and CALLAHAN, Circuit Judges, and SEABRIGHT, District
Judge.**
Appellant Ivan Alekseyevets (“Appellant”) appeals an adverse decision on
his claim for Supplemental Social Security Income disability benefits (“SSI”),
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable J. Michael Seabright, District Judge for the U.S.
District Court for the District of Hawaii, sitting by designation.
based on the administrative law judge’s (“ALJ”) finding that he was not disabled.
The district court affirmed the ALJ’s decision. Appellant contends that the ALJ
erred by failing to: (1) find that Appellant had established a colorable mental
impairment claim and utilize the psychiatric review technique (“PRT”);
(2) consider Appellant’s mental limitations in applying the Medical-Vocational
Guidelines (“the Grids”); (3) adopt a previous ALJ’s Residual Functional Capacity
(“RFC”) determination after finding that Appellant had not shown changed
circumstances; and (4) credit a physician assistant’s medical reports and
Appellant’s testimony in formulating the RFC.
We have jurisdiction under 28 U.S.C. § 1291 and review the district court’s
decision to uphold an ALJ’s benefits decision de novo. See Hiler v. Astrue, 687
F.3d 1208, 1211 (9th Cir. 2012). We will “reverse [a nondisability finding] only if
the ALJ’s decision was not supported by substantial evidence in the record as a
whole or if the ALJ applied the wrong legal standard.” Molina v. Astrue, 674 F.3d
1104, 1110 (9th Cir. 2012). We conclude that the ALJ’s decision is supported by
substantial evidence in the record and thus affirm the district court.1
1
Because the parties are familiar with the facts and procedural history,
we restate them here only as necessary to explain our decision.
2
1. Appellant contends that we should remand this case because the ALJ
failed to apply the PRT in assessing Appellant’s mental impairment claim. We
disagree. The ALJ’s determination that Appellant failed to present a colorable
claim of mental impairment was supported by substantial evidence in the record,
and thus utilization of the PRT was not required. See Keyser v. Comm’r of Soc.
Sec. Admin., 648 F.3d 721, 726 (9th Cir. 2011). The ALJ reasonably rejected
reports from Dr. Cavenee and Dr. Spence because the reports were brief, and
seemed to be limited by the language barrier. The ALJ noted that these reports
were contradicted by both the neurological exam performed by Dr. Tran and the
testimony of Dr. Spence, the Medical Examiner, who indicated that Appellant’s
descriptions of his symptoms were inconsistent with the medical testing.2 See
Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (determining that an ALJ
need not accept a medical opinion which is “brief and conclusionary in form with
little in the way of clinical findings to support [its] conclusion”) (internal
2
During Dr. Spence’s testimony, he opined that the inconsistencies
could be explained by somatization. Appellant contends that this statement serves
as a diagnosis of somatization and strengthens Appellant’s mental impairment
claim. This argument is without merit. It is clear from the record that Dr.
Spence’s discussion of somatization was used to illustrate deficiencies in the
medical reports and was not an actual diagnosis.
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quotations omitted)). Thus, the ALJ’s findings are supported by substantial
evidence in the record.
2. Appellant contends that the ALJ improperly applied the Grids because
he did not take Appellant’s mental claims into consideration. A claimant fails to
show error in the Grid analysis by merely reiterating his dispute with the RFC
finding. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175–76 (9th Cir. 2008).
Because we find Appellant’s prior argument as to whether he had a colorable
mental impairment claim unpersuasive, this argument also fails.
3. Appellant also argues that the because the ALJ found no changed
circumstances, he erred by failing to adopt a previous ALJ’s RFC determination
from a prior proceeding. Under Chavez v. Bowen, 844 F.2d 691, 694 (9th Cir.
1998), an applicant previously found not disabled is presumably not disabled
unless he can show changed circumstances indicating a greater level of disability
since the date of the prior decision. Although the first ALJ’s RFC findings are
entitled to “some res judicata consideration,” id., the Chavez presumption does not
prohibit a subsequent ALJ from considering new medical information and making
an updated RFC determination. See Stubbs-Danielson, 539 F.3d at 1173. Here,
the ALJ did not err by considering new medical information and revising
Appellant’s RFC based on recent medical evaluations and results. Moreover, the
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prior ALJ found that Appellant was not disabled and was generously assuming the
lowest functional capacity possible, which was still insufficient to support a
disability finding.
4. In determining Appellant’s RFC, the ALJ was justified in assigning
less weight to the opinion of Ms. Bella Arshinova, a physician assistant, because
she was not a medical doctor and was thus considered an “other source” as
opposed to an “acceptable medical source.” See Molina, 674 F.3d at 1111.
Moreover, the ALJ was justified in disregarding Appellant’s subjective claims
regarding the severity of his symptoms because he provided “specific, cogent
reasons” based upon the record for doing so. Morgan v. Comm’r of Soc. Sec.
Admin., 169 F.3d 595, 599 (9th Cir. 1999). For the foregoing reasons, the district
court’s judgment is AFFIRMED.
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