Richard Velez v. Kilolo Kijakazi

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 5, 2021
• Docket: 18-17175
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 5 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RICHARD VELEZ, No. 18-17175

Plaintiff-Appellant, D.C. No. 5:17-cv-04064-BLF

v. MEMORANDUM* KILOLO KIJAKAZI, Acting Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Beth Labson Freeman, District Judge, Presiding

Submitted September 30, 2021**

Before: THOMAS, Chief Judge, HAWKINS, and McKEOWN, Circuit Judges.

Richard Velez 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 U.S.C. § 1291

and 42 U.S.C. § 405(g). We review de novo, Attmore v. Colvin, 827 F.3d 872, 875

* 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). (9th Cir. 2016), and we affirm.

The ALJ considered the requisite factors and applied the correct legal

standard in evaluating the medical opinion evidence. See Trevizo v. Berryhill, 871

F.3d 664, 675 (9th Cir. 2017) (citing 20 C.F.R. § 404.1527(c)(2)-(6)); Batson v.

Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (ALJ is

responsible for resolving conflicts in the medical testimony). The ALJ provided

specific and legitimate reasons to discount the opinions of Dr. Yuen as inconsistent

with the medical record, including Velez’s conservative treatment. See Tommasetti

v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (inconsistency between physician’s

opinion and the medical record was a specific and legitimate reason to reject the

opinion).

The ALJ provided specific and legitimate reasons for discounting the

opinions of Dr. DeBattista. The ALJ noted Velez had received minimal mental

health treatment, and Dr. DeBattista’s opinion was inconsistent with treating

psychologist Dr. Le’s assessment. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th

Cir. 2002) (ALJ need not accept an opinion that is “inadequately supported by

clinical findings”); Batson, 359 F.3d at 1195 (ALJ may discount opinion that is not

supported by the record as a whole or by objective medical findings).

The ALJ gave specific, clear and convincing reasons for discounting Velez’s

testimony regarding the severity of his symptoms, including that his testimony was

2 18-17175 not supported by the objective medical record, his course of treatment was

conservative, and he exhibited noncompliance with diabetes treatment. See Rollins

v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (“While subjective pain testimony

cannot be rejected on the sole ground that it is not fully corroborated by objective

medical evidence, the medical evidence is still a relevant factor in determining the

severity of the claimant’s pain and its disabling effects.”); Parra v. Astrue, 481

F.3d 742, 751 (9th Cir. 2007) (evidence of conservative treatment is sufficient to

discount a claimant’s testimony regarding the severity of an impairment); Molina

v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (ALJ may properly rely on

unexplained or inadequately explained failure to seek treatment or to follow a

prescribed course of treatment in assessing a claimant’s credibility) superseded by

regulation on other grounds.

The ALJ’s determination of Velez’s residual functional capacity (“RFC”)

was supported by substantial evidence. See Bayliss v. Barnhart, 427 F.3d 1211,

1217 (9th Cir. 2005) (we will affirm the ALJ’s determination of RFC if the ALJ

applied the proper legal standard and his decision is supported by substantial

evidence). The ALJ is not required to incorporate opinion evidence that was

permissibly discounted. Batson, 359 F.3d at 1197.

AFFIRMED.

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