NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 10 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ANTHONY J. SCAVONE, No. 23-35132
Plaintiff-Appellant, D.C. No. 3:22-cv-05328-SKV
v. MEMORANDUM* MARTIN J. O'MALLEY, Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court for the Western District of Washington Sarah Kate Vaughan, Magistrate Judge, Presiding
Submitted April 5, 2024** Portland, Oregon
Before: OWENS and FRIEDLAND, Circuit Judges, and RAYES,*** District Judge.
Anthony J. Scavone appeals from the district court decision affirming the
* 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). *** The Honorable Douglas L. Rayes, United States District Judge for the District of Arizona, sitting by designation. Commissioner of Social Security’s denial of his application for Disability
Insurance Benefits and Supplemental Security Income. We affirm.
We review de novo a district court’s order affirming a denial of Social
Security benefits. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). We
reverse only if the decision of the administrative law judge (“ALJ”) “was not
supported by substantial evidence in the record as a whole or if the ALJ applied the
wrong legal standard.” Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021)
(quoting Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012)).
Scavone argues that the revised regulations for evaluating medical opinions
are partially invalid, and that the ALJ improperly evaluated the opinions of Drs.
Morgan and Staley,1 failed to develop the record, and improperly rejected his and
his mother’s testimony. He contends that these errors resulted in an erroneous
1 Scavone claims the ALJ failed to properly evaluate non-opinion medical evidence, but he fails to identify any specific error for review. Instead, Scavone summarizes the medical evidence he perceives as favorable and argues this evidence undermines the ALJ’s evaluation of Dr. Morgan’s opinion and Scavone’s testimony. Scavone also claims the ALJ failed to properly evaluate the non- examining medical opinions, but the only specific argument he develops is that the ALJ improperly rejected Dr. Staley’s opinion regarding his postural limitations. For reasons stated in this disposition, we conclude that there is no error in the ALJ’s evaluation of Scavone’s testimony or the opinions of Drs. Morgan and Staley. To the extent Scavone vaguely assigns error to the ALJ’s evaluation of other medical evidence, his arguments are “too undeveloped to be capable of assessment.” Hibbs v. Dep’t of Hum. Res., 273 F.3d 844, 873 n.34 (9th Cir. 2001); see also Miller v. Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986) (“The Court of Appeals will not ordinarily consider matters on appeal that are not specifically and distinctly argued in appellant’s opening brief.”).
2 residual functional capacity and disability determination.
1. The revised regulations regarding the evaluation medical opinions, 20
C.F.R. § 404.1520c, are valid under the Social Security Act, and they are not
arbitrary and capricious under the Administrative Procedure Act. Cross v.
O’Malley, 89 F.4th 1211, 1216–17 (9th Cir. 2024).
2. The ALJ reasonably discounted Dr. Morgan’s opinion because it
addresses a period remote from Scavone’s alleged disability onset date and was
considered in a prior ALJ decision that resulted in a finding that Scavone is not
disabled. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th
Cir. 2008) (“Medical opinions that predate the alleged onset of disability are of
limited relevance.”).
3. The ALJ reasonably discounted Dr. Staley’s opinion regarding Scavone’s
inability to kneel, crouch, or crawl because those postural limitations are
inconsistent with the overall treatment record, including examinations that found
no evidence of abnormal gait, swelling, instability, weakness, or other
abnormalities in Scavone’s lower extremities. See 20 C.F.R. § 404.1520c(c)(2)
(“The more consistent a medical opinion(s) . . . is with the evidence from other
medical sources . . . the more persuasive the medical opinion(s) . . . will be.”);
Woods v. Kijakazi, 32 F.4th 785, 794 (9th Cir. 2022) (concluding the ALJ properly
rejected a medical source opinion that was inconsistent with the objective
3 treatment record). Regardless, the ALJ’s rejection of Dr. Staley’s opinion
regarding Scavone’s postural limitations is harmless because none of the
occupations the ALJ found Scavone capable of performing involve kneeling,
crouching, or crawling. See 222.587-038 Router, Dictionary of Occupational
Titles, 1991 WL 672123 (4th ed. 1991) (Routing Clerk); 239.567-010 Office
Helper, Dictionary of Occupational Titles, 1991 WL 672232 (4th ed. 1991);
706.684-022 Assembler, Small Products I, Dictionary of Occupational Titles, 1991
WL 679050 (4th ed. 1991).
4. The ALJ reasonably discounted Dr. Pliska’s opinion because it is
internally inconsistent and lacks explanation. See 20 C.F.R. § 404.1520c(c)(1)–(2)
(instructing the ALJ to consider supportability and consistency when evaluating
medical opinions). The ALJ’s duty to further develop the record was not triggered
because the record was adequate for the ALJ to evaluate the persuasiveness of Dr.
Pliska’s opinion. See Mayes v. Massanari, 276 F.3d 453, 459–60 (9th Cir. 2001)
(“An ALJ’s duty to develop the record further is triggered only when there is
ambiguous evidence or when the record is inadequate to allow for proper
evaluation of the evidence.”); Ford v. Saul, 950 F.3d 1141, 1156 (9th Cir. 2020)
(concluding the ALJ had no duty to recontact a medical source where the record
was adequate to allow the ALJ to evaluate the persuasiveness of the opinion).
4 5. The ALJ provided “specific, clear, and convincing reasons” for
discounting Scavone’s testimony concerning the severity and effects of his
symptoms. Ahearn, 988 F.3d at 1116 (quoting Smolen v. Chater, 80 F.3d 1273,
1281 (9th Cir. 1996)). The ALJ reasonably concluded that Scavone’s daily
activities—including living independently, tending to his own personal care,
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 10 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ANTHONY J. SCAVONE, No. 23-35132
Plaintiff-Appellant, D.C. No. 3:22-cv-05328-SKV
v. MEMORANDUM* MARTIN J. O'MALLEY, Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court for the Western District of Washington Sarah Kate Vaughan, Magistrate Judge, Presiding
Submitted April 5, 2024** Portland, Oregon
Before: OWENS and FRIEDLAND, Circuit Judges, and RAYES,*** District Judge.
Anthony J. Scavone appeals from the district court decision affirming the
* 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). *** The Honorable Douglas L. Rayes, United States District Judge for the District of Arizona, sitting by designation. Commissioner of Social Security’s denial of his application for Disability
Insurance Benefits and Supplemental Security Income. We affirm.
We review de novo a district court’s order affirming a denial of Social
Security benefits. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). We
reverse only if the decision of the administrative law judge (“ALJ”) “was not
supported by substantial evidence in the record as a whole or if the ALJ applied the
wrong legal standard.” Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021)
(quoting Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012)).
Scavone argues that the revised regulations for evaluating medical opinions
are partially invalid, and that the ALJ improperly evaluated the opinions of Drs.
Morgan and Staley,1 failed to develop the record, and improperly rejected his and
his mother’s testimony. He contends that these errors resulted in an erroneous
1 Scavone claims the ALJ failed to properly evaluate non-opinion medical evidence, but he fails to identify any specific error for review. Instead, Scavone summarizes the medical evidence he perceives as favorable and argues this evidence undermines the ALJ’s evaluation of Dr. Morgan’s opinion and Scavone’s testimony. Scavone also claims the ALJ failed to properly evaluate the non- examining medical opinions, but the only specific argument he develops is that the ALJ improperly rejected Dr. Staley’s opinion regarding his postural limitations. For reasons stated in this disposition, we conclude that there is no error in the ALJ’s evaluation of Scavone’s testimony or the opinions of Drs. Morgan and Staley. To the extent Scavone vaguely assigns error to the ALJ’s evaluation of other medical evidence, his arguments are “too undeveloped to be capable of assessment.” Hibbs v. Dep’t of Hum. Res., 273 F.3d 844, 873 n.34 (9th Cir. 2001); see also Miller v. Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986) (“The Court of Appeals will not ordinarily consider matters on appeal that are not specifically and distinctly argued in appellant’s opening brief.”).
2 residual functional capacity and disability determination.
1. The revised regulations regarding the evaluation medical opinions, 20
C.F.R. § 404.1520c, are valid under the Social Security Act, and they are not
arbitrary and capricious under the Administrative Procedure Act. Cross v.
O’Malley, 89 F.4th 1211, 1216–17 (9th Cir. 2024).
2. The ALJ reasonably discounted Dr. Morgan’s opinion because it
addresses a period remote from Scavone’s alleged disability onset date and was
considered in a prior ALJ decision that resulted in a finding that Scavone is not
disabled. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th
Cir. 2008) (“Medical opinions that predate the alleged onset of disability are of
limited relevance.”).
3. The ALJ reasonably discounted Dr. Staley’s opinion regarding Scavone’s
inability to kneel, crouch, or crawl because those postural limitations are
inconsistent with the overall treatment record, including examinations that found
no evidence of abnormal gait, swelling, instability, weakness, or other
abnormalities in Scavone’s lower extremities. See 20 C.F.R. § 404.1520c(c)(2)
(“The more consistent a medical opinion(s) . . . is with the evidence from other
medical sources . . . the more persuasive the medical opinion(s) . . . will be.”);
Woods v. Kijakazi, 32 F.4th 785, 794 (9th Cir. 2022) (concluding the ALJ properly
rejected a medical source opinion that was inconsistent with the objective
3 treatment record). Regardless, the ALJ’s rejection of Dr. Staley’s opinion
regarding Scavone’s postural limitations is harmless because none of the
occupations the ALJ found Scavone capable of performing involve kneeling,
crouching, or crawling. See 222.587-038 Router, Dictionary of Occupational
Titles, 1991 WL 672123 (4th ed. 1991) (Routing Clerk); 239.567-010 Office
Helper, Dictionary of Occupational Titles, 1991 WL 672232 (4th ed. 1991);
706.684-022 Assembler, Small Products I, Dictionary of Occupational Titles, 1991
WL 679050 (4th ed. 1991).
4. The ALJ reasonably discounted Dr. Pliska’s opinion because it is
internally inconsistent and lacks explanation. See 20 C.F.R. § 404.1520c(c)(1)–(2)
(instructing the ALJ to consider supportability and consistency when evaluating
medical opinions). The ALJ’s duty to further develop the record was not triggered
because the record was adequate for the ALJ to evaluate the persuasiveness of Dr.
Pliska’s opinion. See Mayes v. Massanari, 276 F.3d 453, 459–60 (9th Cir. 2001)
(“An ALJ’s duty to develop the record further is triggered only when there is
ambiguous evidence or when the record is inadequate to allow for proper
evaluation of the evidence.”); Ford v. Saul, 950 F.3d 1141, 1156 (9th Cir. 2020)
(concluding the ALJ had no duty to recontact a medical source where the record
was adequate to allow the ALJ to evaluate the persuasiveness of the opinion).
4 5. The ALJ provided “specific, clear, and convincing reasons” for
discounting Scavone’s testimony concerning the severity and effects of his
symptoms. Ahearn, 988 F.3d at 1116 (quoting Smolen v. Chater, 80 F.3d 1273,
1281 (9th Cir. 1996)). The ALJ reasonably concluded that Scavone’s daily
activities—including living independently, tending to his own personal care,
playing video games, driving, dining out, and socializing with friends and his
daughter—undermine his allegations of debilitating symptoms. The ALJ also
reasonably concluded that Scavone’s more extreme claims about his symptoms and
limitations are inconsistent with record evidence of generally normal physical and
mental status findings and generally effective treatment, and with Scavone’s ability
to occasionally work part time. See Smartt v. Kijakazi, 53 F.4th 489, 498 (9th Cir.
2022) (“When objective medical evidence in the record is inconsistent with the
claimant’s subjective testimony, the ALJ may indeed weigh it as undercutting such
testimony.”); Ford, 950 F.3d at 1156 (“An ALJ may consider any work activity,
including part-time work, in determining whether a claimant is disabled[.]”);
Wellington v. Berryhill, 878 F.3d 867, 876 (9th Cir. 2017) (“[E]vidence of medical
treatment successfully relieving symptoms can undermine a claim of disability.”);
Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (“[E]vidence of ‘conservative
treatment’ is sufficient to discount a claimant’s testimony regarding severity of an
impairment.” (quoting Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995))).
5 For the same reasons, the ALJ did not err in rejecting the testimony of Scavone’s
mother, which largely mirrors Scavone’s own testimony concerning his symptoms
and limitations.
6. The ALJ’s residual functioning capacity determination and her finding
that Scavone could perform other jobs in the national economy notwithstanding his
limitations are supported by substantial evidence. Scavone contends that the ALJ’s
residual functional capacity determination is erroneous because it does not
incorporate the limitations described by Dr. Morgan, Scavone, and Scavone’s
mother, and consequently the hypotheticals to the vocational expert failed to
account for all his limitations. But the ALJ did not err in evaluating the evidence
discussed above, and Scavone has not challenged any other aspect of the ALJ’s
residual functional capacity determination or hypotheticals to the vocational
expert.
AFFIRMED.