Albert Gilding, Jr. v. Kilolo Kijakazi

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 16, 2023
• Docket: 20-15508
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 16 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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.

2 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.