Kong v. Colvin

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 10, 2024
• Docket: 23-2928
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 10 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

VETH KONG, No. 23-2928 D.C. No. Plaintiff - Appellant, 3:22-cv-05999-DWC v. MEMORANDUM** CAROLYN W. COLVIN*, Acting Commissioner of Social Security,

Defendant - Appellee.

Appeal from the United States District Court for the Western District of Washington David W. Christel, Magistrate Judge, Presiding

Submitted December 6, 2024*** Portland, Oregon

Before: CALLAHAN, NGUYEN, and SUNG, Circuit Judges.

Petitioner Veth Kong appeals from the district court’s decision affirming

* Carolyn W. Colvin is substituted for her predecessor Martin O’Malley, Commissioner of the Social Security Administration, as Acting Commissioner of the Social Security Administration, pursuant to Federal Rule of Appellate Procedure 43(c). ** 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). Acting Commissioner of Social Security Carolyn Colvin’s denial of disability

insurance benefits under Title II of the Social Security Act for a period between

April 24, 2013, and September 30, 2018. We have jurisdiction under 28 U.S.C. §

1291. We review the district court’s judgment de novo and the underlying

decision of the Administrative Law Judge (“ALJ”) for substantial evidence, see

Smartt v. Kijakazi, 53 F.4th 489, 494 (9th Cir. 2022), and affirm.

1. The ALJ did not violate Kong’s procedural due process rights. “[D]ue

process requires that a claimant receive meaningful notice and an opportunity to be

heard before his claim for disability benefits may be denied.” Udd v. Massanari,

245 F.3d 1096, 1099 (9th Cir. 2001), as amended on denial of reh’g (May 3,

2001). Here, Kong was given sufficient notice and offered multiple opportunities

to be heard at several hearings. Kong’s other alleged violations of due process

were harmless. See Stout v. Comm’r. Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th

Cir. 2006) (affirming as harmless error “where the mistake was nonprejudicial or

irrelevant to the ALJ’s ultimate disability conclusion”). While the ALJ referenced

an exhibit that contained missing responses to interrogatories, the record indicates

that Kong’s counsel had the responses available during the testimony. The ALJ

fully summarized testimony to Kong’s counsel that he missed when there were

technical difficulties. The ALJ also did not interrupt Kong’s counsel in a manner

that violated Kong’s procedural due process rights.

2 2. The ALJ did not err in her assessment of four medical opinions that

Kong challenges. First, Kong argues that the ALJ erred in mischaracterizing the

testimony of Dr. Elmi, a non-examining physician who reviewed Kong’s entire

medical record. Kong argues that the ALJ “fail[ed] to accurately report” Dr.

Elmi’s conclusion that Kong could only “occasionally” reach forward as it could

cause pain. However, Dr. Elmi testified that Kong could reach overhead without

loading occasionally and could reach in front to 90 degrees without any problem,

and the ALJ accurately integrated these limitations in her residual functional

capacity assessment.

Second, Kong argues that the ALJ’s decision to give Dr. Harrison and Dr.

Branting’s opinions less weight is not supported by substantial evidence.

Generally, more weight is given to the opinion of a source that examined a

claimant, such as Dr. Harrison and Dr. Branting, than that of a non-examining

source, like Dr. Elmi. 20 C.F.R. § 404.1527(c)(1). However, a non-examining

source’s opinion can “constitute substantial evidence when it is consistent with

other independent evidence in the record.” Tonapetyan v. Halter, 242 F.3d 1144,

1149 (9th Cir. 2001). “In order to discount the opinion of an examining physician

in favor of the opinion of a nonexamining medical advisor, the ALJ must set forth

specific, legitimate reasons that are supported by substantial evidence in the

record.” Nguyen v. Chater, 100 F.3d 1462, 1466 (9th Cir. 1996). Here, the ALJ

3 set forth specific and legitimate reasons for crediting Dr. Elmi’s opinion over Dr.

Harrison and Dr. Branting’s opinions. The ALJ detailed how Dr. Elmi’s opinion

was more consistent with the record than Dr. Harrison and Dr. Branting’s opinions.

Lastly, Kong argues that the ALJ erred by not fully crediting the opinion of

Dr. Gomes, an examining psychologist who evaluated Kong’s mental well-being.

An ALJ must state “clear and convincing reasons that are supported by substantial

evidence” to reject the uncontradicted opinion of a treating or examining

physician. Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)

(cleaned up). Here, the ALJ provided multiple clear and convincing reasons for

not fully crediting Dr. Gomes’s opinion, including that the opinion is vague as to

the functional limitations and because it is inconsistent with other aspects of the

record. These reasons are supported by substantial evidence, such as testimony

from Kong that her depression was caused by her unemployment.

3. The ALJ did not err in discounting Kong’s testimony. The ALJ provided

several specific, clear, and convincing reasons for discounting portions of Kong’s

testimony, finding that Kong’s “statements concerning the intensity, persistence

and limiting effects of these symptoms are not entirely consistent with the medical

evidence and other evidence in the record.” See Smolen v. Chater, 80 F.3d 1273,

1281 (9th Cir. 1996) (cleaned up). The ALJ also did not err in discounting lay

witness testimony from Kong’s son. The ALJ provided germane reasons to reject

4 his observations as being inconsistent with Dr. Elmi’s testimony, the medical

evidence, and Kong’s reported daily activities.

AFFIRMED.1

1 As Kong’s other arguments depend on the ALJ erring in her assessment of the evidence, we need not reach them.