Victor Davenport v. Martin O'Malley

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 30, 2024
• Docket: 23-35146
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 30 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

VICTOR DAVENPORT, No. 23-35146

Plaintiff-Appellant, D.C. No. 2:20-cv-00289-MKD

v. MEMORANDUM* MARTIN J. O’MALLEY, Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of Washington Mary K. Dimke, District Judge, Presiding

Submitted June 7, 2024** Portland, Oregon

Before: GRABER, RAWLINSON, and SUNG, Circuit Judges.

Claimant Victor Davenport appeals from the district court’s decision

affirming the Commissioner of Social Security’s denial of his application for

disability insurance benefits. We have jurisdiction under 28 U.S.C. § 1291. We

* 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). review the district court’s order de novo and reverse only if the Administrative

Law Judge’s (“ALJ”) decision was not supported by substantial evidence or was

based on legal error. Larson v. Saul, 967 F.3d 914, 922 (9th Cir. 2020). We affirm.

1. Davenport argues that the ALJ erroneously discounted the opinion of his

treating physician, Dr. Joseph Cwik. An ALJ must assess the persuasiveness of the

relevant medical opinions and explain how he considered the supportability and

consistency factors. 20 C.F.R. § 404.1520c(a)–(c) (effective March 27, 2017).

Here, the ALJ found unpersuasive Dr. Cwik’s opinion that Davenport needed to

elevate his legs, would be off-task, or that he would miss work as a result of his

impairments, because those findings had no support in the medical record and were

inconsistent with Davenport’s own testimony and the medical opinion of other

professionals. The ALJ properly explained his analysis, and his conclusions are

supported by substantial evidence in the record. See Woods v. Kijakazi, 32 F.4th

785, 792 (9th Cir. 2022) (stating standard).

2. Davenport argues that the ALJ erred by not giving great weight to the

Department of Veterans Affairs’ (“VA”) determination of disability. He relies on

McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002), but that argument is

foreclosed. See Kitchen v. Kijakazi, 82 F.4th 732, 738 (9th Cir. 2023) (clarifying

that McCartey is no longer good law for claims filed after March 27, 2017 because

the new “regulations provide that ‘decisions by other governmental agencies,’

2 including the VA, are ‘inherently neither valuable or persuasive’ and thus an ALJ

is not required to include any analysis about ‘a decision made by any other

governmental agency’” (citations omitted)).

3. Davenport argues that the ALJ erred at step three by failing to analyze

adequately the evidence in reaching his decision. In particular, Davenport contends

that severe obstructive sleep apnea should be considered under the respiratory

disorders Listings and that the ALJ erred by not calling a medical expert at the

hearing to determine whether he meets or medically equals any Listing. “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.” Mayes v. Massanari, 276 F.3d 453, 459–60 (9th Cir. 2001). Davenport

did not establish that his “‘symptoms, signs and laboratory findings’ . . . [met] each

characteristic of a listed impairment relevant to his . . . claim,” in particular those

identified under 3.02C3 and 3.04F. Tackett, v. Apfel, 180 F.3d 1094, 1099 (9th Cir.

1999). Nor did he establish that “symptoms, signs and laboratory findings [were]

‘at least equal in severity and duration’ to the characteristics of” chronic

respiratory disorders under either Listing. Id. (quoting 20 C.F.R. § 404.1526(a)).

The ALJ did not have a duty to develop the record further because the record in

this case is not ambiguous and there was adequate evidence for the ALJ to

determine that Davenport’s claim did not meet or medically equal Listings under

3 3.00 for respiratory disorders.

4. Davenport also argues that the ALJ erred by discounting his symptom

testimony. Under the circumstances, the ALJ was required to give “specific, clear

and convincing reasons” for discounting Davenport’s testimony about the severity

of his symptoms. Smith v. Kijakazi, 14 F.4th 1108, 1112 (9th Cir. 2021) (quoting

Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014)). The ALJ met that

standard: the ALJ explained that Davenport’s self-reported symptoms were

inconsistent with his testimony and presentation to providers. See Carmickle v.

Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) (“Contradiction

with the medical record is a sufficient basis for rejecting the claimant’s subjective

testimony.”). The ALJ described how Davenport’s “volunteer activities during

much of the adjudication period” were not consistent with his allegations of

disabling limitations. The ALJ also noted that Davenport denied chest pain and

unusual dyspnea or fatigue and remained active by walking up to three miles, six

days a week.

5. Davenport argues that the ALJ erred at step four and five by relying on

the vocational expert’s response to an incomplete hypothetical question. “But, an

ALJ is free to accept or reject restrictions in a hypothetical question that are not

supported by substantial evidence.” Kitchen, 82 F.4th at 742 (citation and internal

quotation marks omitted). Davenport’s argument rests on the premise that the ALJ

4 erred in considering the medical opinion evidence and his symptom testimony. For

the reasons stated above, we conclude that the ALJ did not err.

AFFIRMED.