NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 5 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MICHAEL L. PHILLIPS II, No. 24-6711 D.C. No. Plaintiff - Appellant, 3:24-cv-05191-BAT v. MEMORANDUM* FRANK BISIGNANO, Commissioner of Social Security,
Defendant - Appellee.
Appeal from the United States District Court for the Western District of Washington Brian Tsuchida, Magistrate Judge, Presiding
Submitted November 3, 2025** Portland, Oregon
Before: M. SMITH, NGUYEN, and H.A. THOMAS, Circuit Judges.
Michael Phillips appeals from the district court’s judgment affirming
Commissioner of Social Security Frank Bisignano’s (“Commissioner”) denial of
disability insurance benefits (“DIB”) and supplemental security income (“SSI”)
* 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). under Titles II and XVI of the Social Security Act. 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 err in failing to reopen Phillips’s prior application.
While 42 U.S.C. § 405(g) provides for judicial review of a Commissioner’s “final
decision,” a decision not to reopen a claim is “not considered a ‘final’ decision
within the meaning of § 405(g),” because such a decision is “purely discretionary.”
Krumpelman v. Heckler, 767 F.2d 586, 588 (9th Cir. 1985). An exception applies
“to any colorable constitutional claim of due process violation that implicates a due
process right either to a meaningful opportunity to be heard or to seek
reconsideration of an adverse benefits determination.” Klemm v. Astrue, 543 F.3d
1139, 1144 (9th Cir. 2008) (internal quotation marks omitted) (quoting Udd v.
Massanari, 245 F.3d 1096, 1099 (9th Cir. 2001)). “If a claimant provides a
facially legitimate reason that constitutes ‘good cause’ under the Commissioner’s
regulations [under] 20 C.F.R. § 404.911(b), then due process requires that the ALJ
address it.” Dexter v. Colvin, 731 F.3d 977, 981–82 (9th Cir. 2013) (footnote
omitted).
Here, however, Phillips did not raise a regulatory reason listed under
20 C.F.R. § 404.911(b) and did not explicitly argue a due process claim or explain
2 24-6711 why there would be a due process issue. As such, the ALJ did not err in failing to
reopen Phillips’s prior application.
2. The ALJ did not err in evaluating the medical evidence because he
provided specific, cogent reasons related to the lack of “consistency” and
“supportability” of the rejected evidence. 20 C.F.R. §§ 404.1520c(a)–(b),
416.920c(a)–(b); see Woods v. Kijakazi, 32 F.4th 785, 791–92 (9th Cir. 2022). For
example, the ALJ questioned the supportability of Eastman’s 2016 report for
Phillips’s 2018 SSI claim since it covered a time period outside the period for
which Phillips was claiming SSI benefits. The ALJ also explained that Dr.
Wingate’s opinion of Phillips’s limitations with physical activities,
communication, and maintaining professionalism was inconsistent with Phillips’s
“demonstrated activities,” such as performing “yard work,” “exercising at the
gym,” and “socializing with others.” The ALJ’s skepticism of the accuracy of
Phillips’s disability test result is further supported by Dr. Wingate’s own opinion
that Phillips’s score on the Rey 15-Item Test “suggested possible malingering” and
that his Beck Depression Inventory report “indicated possible negative symptom
exaggeration.”
Additionally, the ALJ explained that Dr. Jaura’s and Dr. Fernandez’s reports
of Phillips’s physical limitations of climbing and “concentrated exposure to
3 24-6711 extreme cold, vibration, and hazards” were inconsistent with his “ability to walk or
ride his bicycle to get around” and medical evidence of Phillips’s “intact gait” and
“neurological functioning of the extremities.” The ALJ also found Marshall’s
opinions regarding Phillips’s mental health symptoms inconsistent with records
showing that Phillips “improved and stabilized with treatment and stable housing.”
Therefore, the ALJ properly evaluated the medical evidence.
3. The ALJ did not err in rejecting Phillips’s testimony because the ALJ
showed evidence of symptom exaggerations and provided clear and convincing
inconsistencies between Phillips’s testimony and the record. To determine whether
a claimant’s symptom testimony must be credited, this court first asks whether the
claimant has presented objective medical evidence that “could reasonably be
expected to produce the pain or other symptoms alleged.” Trevizo v. Berryhill, 871
F.3d 664, 678 (9th Cir. 2017) (quoting Garrison v. Colvin, 759 F.3d 995, 1014–15
(9th Cir. 2014)). If the claimant satisfies the first step and there is no evidence of
malingering, the ALJ must provide “specific, clear and convincing reasons” for
rejecting Claimant’s subjective symptom testimony. Id.
Phillips contends that under Brown-Hunter, the ALJ misapplied the
objective evidence test. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir.
2015) (amended opinion). But Brown-Hunter is inapplicable because it relates to
what the “clear and convincing” standard is when “an ALJ concludes that a
4 24-6711 claimant is not malingering.” Id. at 492–93. Unlike the ALJ in Brown-Hunter, the
ALJ here concluded that the claimant was malingering. And evidence of
malingering is sufficient to support a negative credibility finding, relieving the
ALJ’s burden of providing specific, clear, and convincing reasons to discount a
claimant’s testimony. Benton v. Barnhart, 331 F.3d 1030, 1040–41 (9th Cir.
2003).
Furthermore, the ALJ had other “specific reasons” for his conclusion. For
example, the ALJ based his conclusion that Phillips “inflated his mental health
symptoms and functional limitations” on Dr. Wingate’s opinion that the Beck
Depression Inventory results indicated possible “negative symptom exaggeration.”
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 5 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MICHAEL L. PHILLIPS II, No. 24-6711 D.C. No. Plaintiff - Appellant, 3:24-cv-05191-BAT v. MEMORANDUM* FRANK BISIGNANO, Commissioner of Social Security,
Defendant - Appellee.
Appeal from the United States District Court for the Western District of Washington Brian Tsuchida, Magistrate Judge, Presiding
Submitted November 3, 2025** Portland, Oregon
Before: M. SMITH, NGUYEN, and H.A. THOMAS, Circuit Judges.
Michael Phillips appeals from the district court’s judgment affirming
Commissioner of Social Security Frank Bisignano’s (“Commissioner”) denial of
disability insurance benefits (“DIB”) and supplemental security income (“SSI”)
* 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). under Titles II and XVI of the Social Security Act. 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 err in failing to reopen Phillips’s prior application.
While 42 U.S.C. § 405(g) provides for judicial review of a Commissioner’s “final
decision,” a decision not to reopen a claim is “not considered a ‘final’ decision
within the meaning of § 405(g),” because such a decision is “purely discretionary.”
Krumpelman v. Heckler, 767 F.2d 586, 588 (9th Cir. 1985). An exception applies
“to any colorable constitutional claim of due process violation that implicates a due
process right either to a meaningful opportunity to be heard or to seek
reconsideration of an adverse benefits determination.” Klemm v. Astrue, 543 F.3d
1139, 1144 (9th Cir. 2008) (internal quotation marks omitted) (quoting Udd v.
Massanari, 245 F.3d 1096, 1099 (9th Cir. 2001)). “If a claimant provides a
facially legitimate reason that constitutes ‘good cause’ under the Commissioner’s
regulations [under] 20 C.F.R. § 404.911(b), then due process requires that the ALJ
address it.” Dexter v. Colvin, 731 F.3d 977, 981–82 (9th Cir. 2013) (footnote
omitted).
Here, however, Phillips did not raise a regulatory reason listed under
20 C.F.R. § 404.911(b) and did not explicitly argue a due process claim or explain
2 24-6711 why there would be a due process issue. As such, the ALJ did not err in failing to
reopen Phillips’s prior application.
2. The ALJ did not err in evaluating the medical evidence because he
provided specific, cogent reasons related to the lack of “consistency” and
“supportability” of the rejected evidence. 20 C.F.R. §§ 404.1520c(a)–(b),
416.920c(a)–(b); see Woods v. Kijakazi, 32 F.4th 785, 791–92 (9th Cir. 2022). For
example, the ALJ questioned the supportability of Eastman’s 2016 report for
Phillips’s 2018 SSI claim since it covered a time period outside the period for
which Phillips was claiming SSI benefits. The ALJ also explained that Dr.
Wingate’s opinion of Phillips’s limitations with physical activities,
communication, and maintaining professionalism was inconsistent with Phillips’s
“demonstrated activities,” such as performing “yard work,” “exercising at the
gym,” and “socializing with others.” The ALJ’s skepticism of the accuracy of
Phillips’s disability test result is further supported by Dr. Wingate’s own opinion
that Phillips’s score on the Rey 15-Item Test “suggested possible malingering” and
that his Beck Depression Inventory report “indicated possible negative symptom
exaggeration.”
Additionally, the ALJ explained that Dr. Jaura’s and Dr. Fernandez’s reports
of Phillips’s physical limitations of climbing and “concentrated exposure to
3 24-6711 extreme cold, vibration, and hazards” were inconsistent with his “ability to walk or
ride his bicycle to get around” and medical evidence of Phillips’s “intact gait” and
“neurological functioning of the extremities.” The ALJ also found Marshall’s
opinions regarding Phillips’s mental health symptoms inconsistent with records
showing that Phillips “improved and stabilized with treatment and stable housing.”
Therefore, the ALJ properly evaluated the medical evidence.
3. The ALJ did not err in rejecting Phillips’s testimony because the ALJ
showed evidence of symptom exaggerations and provided clear and convincing
inconsistencies between Phillips’s testimony and the record. To determine whether
a claimant’s symptom testimony must be credited, this court first asks whether the
claimant has presented objective medical evidence that “could reasonably be
expected to produce the pain or other symptoms alleged.” Trevizo v. Berryhill, 871
F.3d 664, 678 (9th Cir. 2017) (quoting Garrison v. Colvin, 759 F.3d 995, 1014–15
(9th Cir. 2014)). If the claimant satisfies the first step and there is no evidence of
malingering, the ALJ must provide “specific, clear and convincing reasons” for
rejecting Claimant’s subjective symptom testimony. Id.
Phillips contends that under Brown-Hunter, the ALJ misapplied the
objective evidence test. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir.
2015) (amended opinion). But Brown-Hunter is inapplicable because it relates to
what the “clear and convincing” standard is when “an ALJ concludes that a
4 24-6711 claimant is not malingering.” Id. at 492–93. Unlike the ALJ in Brown-Hunter, the
ALJ here concluded that the claimant was malingering. And evidence of
malingering is sufficient to support a negative credibility finding, relieving the
ALJ’s burden of providing specific, clear, and convincing reasons to discount a
claimant’s testimony. Benton v. Barnhart, 331 F.3d 1030, 1040–41 (9th Cir.
2003).
Furthermore, the ALJ had other “specific reasons” for his conclusion. For
example, the ALJ based his conclusion that Phillips “inflated his mental health
symptoms and functional limitations” on Dr. Wingate’s opinion that the Beck
Depression Inventory results indicated possible “negative symptom exaggeration.”
Since ALJs may question a claimant’s credibility based on treatment records of
exaggeration, the ALJ here did not misapply the objective evidence test. See
Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) (noting evidence of
Claimant’s “tendency to exaggerate” as a valid basis to discount Claimant’s
claims).
Additionally, the ALJ provided specific, clear, and convincing reasons that
Phillips’s testimony was inconsistent with the record. For example, the ALJ
reasoned that while Phillips claimed an inability “to prepare meals at home,”
evidence showed him “cooking.” The ALJ also noted that while Phillips testified
that he had been “relying on a cane when walking,” evidence showed him
5 24-6711 consistently walking “without an assistive device.” Phillips also testified at the
2020 hearing that he struggled with “visual hallucinations and suicidal thoughts,”
but “denied experiencing hallucinations and suicidal thoughts during his mental
health treatment visits.” Therefore, the ALJ properly rejected Phillips’s testimony
for its inconsistency with the record.
4. The ALJ did not err in discrediting Price’s lay testimony because Price’s
testimony conflicted with the medical evidence. The ALJ articulated that Price’s
testimony is “not consistent” with Phillips’s “normal physical examination findings
and lack of treatment.” The ALJ further articulated that Price’s testimony
regarding Phillips’s mental health issue was “not consistent” with the improvement
Phillips experienced with his mental health treatment, supporting this reasoning
with substantial evidence. Because “one reason for which an ALJ may discount
lay testimony is that it conflicts with medical evidence,” the ALJ here properly
discredited Price’s testimony. Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001)
(citing Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984)).
5. The ALJ did not err in determining Phillips’s RFC because the
determination was reasonably supported by evidence. For example, the ALJ
supported his finding that Phillips “can perform routine, predictable tasks” with Dr.
Wingate’s, Dr. Renn’s, and Dr. Jaura’s evaluations, which, among other things,
noted that he could “bathe himself,” “dress himself,” and “vacuum, and mop.” The
6 24-6711 ALJ supported his finding that Phillips “can work in an environment free of fast-
paced production requirements” with evidence of Phillips’s successful work
history and his ability to “tolerate some level of social interaction in the
workplace.” The ALJ also supported his finding that Phillips “can have occasional
interaction with co-workers and the general public” with evidence of Phillips
“using public transportation,” “shopping,” “attending new puppy classes at
PetSmart,” “pursuing college classes,” “caregiving for a friend’s mother,” and
engaging with medical professionals in a “pleasant and cooperative manner.”
Therefore, because the ALJ’s RFC determinations were reasonably supported by
evidence, the ALJ did not err in determining Phillips’s RFCs.
AFFIRMED.
7 24-6711