Cornelius Curtis v. ANDREW M. SAUL, Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CORNELIUS CURTIS,
Plaintiff-Appellant,
v.
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
No. 18-35318
D.C. No. 3:16-cv-01952-PK
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Submitted February 16, 2021**
Before: SILVERMAN, GRABER, and CLIFTON, Circuit Judges.
Cornelius Curtis appeals pro se 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 (Act). We have jurisdiction under
* 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).
FILED
FEB 18 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 5 --

2
28 U.S.C. § 1291. We review de novo, Attmore v. Colvin, 827 F.3d 872, 875 (9th
Cir. 2016), and affirm.1
1. The ALJ provided specific, clear, and convincing reasons to discount
Curtis’ symptom testimony: a record of inconsistently sought and conservative
treatment and a lack of objective medical evidence. See Tommasetti v. Astrue, 533
F.3d 1035, 1039 (9th Cir. 2008) (unexplained or inadequately explained failure to
seek treatment and evidence of conservative treatment are sufficient to discount a
claimant’s symptom testimony); Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir.
2005) (ALJ may consider a lack of objective medical evidence as one factor in the
credibility determination). Any error in the ALJ’s additional reasons for
discounting Curtis’ symptom testimony was harmless. See Molina v. Astrue, 674
F.3d 1104, 1115 (9th Cir. 2012) (error is harmless where it is “inconsequential to
the ultimate nondisability determination” (internal quotation marks omitted)).
2. The ALJ referred to specific evidence in the medical record for
discounting in part the opinion of Dr. Savage as inconsistent with the doctor’s own
statements. See Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998) (ALJ may
“reject the opinion of a non-examining physician by reference to specific evidence
in the medical record”).
1 We deny Curtis’ “motion of approval of social security” at Docket Entry No. 15.

-- 2 of 5 --

3
3. The ALJ provided specific and legitimate reasons for assigning little
weight to the controverted opinion of Dr. Sawyer: because the opinion relied on
Curtis’ exaggerated statements regarding the nature of his military service and
because Dr. Sawyer did not consider Curtis’ abilities had he been taking
medication as prescribed. See Chaudhry v. Astrue, 688 F.3d 661, 671 (9th. Cir.
2012) (ALJ may reject a physician’s opinion based on an inaccurate diagnostic
picture); Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir.
2006) (impairments that can be controlled effectively with medication are not
disabling for the purpose of determining eligibility for disability benefits).2
4. The ALJ gave the opinion of examining psychologist Dr. Williams “great
weight.” The ALJ noted that Dr. Williams’ opinion was consistent with Curtis’
statements regarding not taking ADHD medication and not consistently taking
medication for his other mental symptoms. Although, as Curtis points out, Dr.
Williams confirmed Curtis’ psychological diagnoses, he noted only a very few
mild limitations. See Young v. Sullivan, 911 F.2d 180, 183 (9th Cir.
1990) (holding that mere diagnosis of a listed impairment is not sufficient to
2 Any error in the ALJ’s additional reasons for discounting the opinions of Drs.
Savage and Sawyer was harmless because the specific and legitimate reasons
discussed above are based on substantial evidence and support the ALJ’s decision.
See Molina, 674 F.3d at 1115.

-- 3 of 5 --

4
sustain a finding of disability). The ALJ’s evaluation of Dr. Williams’ opinion was
reasonable and supported by substantial evidence.
5. The ALJ provided persuasive, specific, and valid reasons, supported by
the record, for affording little weight to the 100% Veterans Affairs (VA) disability
rating. Curtis performed substantial gainful activity after the VA’s 2008 decision
finding Curtis disabled, and the VA did not have the opportunity to evaluate the
complete medical record. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d
685, 695 (9th Cir. 2009) (“[T]he acquisition of new evidence or a properly justified
reevaluation of old evidence constitutes a persuasive, specific, and valid reason[ ]
... supported by the record” for giving little weight to a VA disability rating.
(internal quotation marks omitted) (alterations in original)). Any error in the ALJ’s
additional reasons for discounting the VA disability rating was harmless.
6. The ALJ properly relied on the vocational expert’s (VE) testimony that
Curtis was capable of making a successful adjustment to other work existing in
significant numbers in the national economy, such as a cashier, office helper, or
packing line worker. The ALJ’s hypothetical question to the VE included Curtis’
limitations that the ALJ found were “credible and supported by substantial
evidence in the record.” Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005).
Therefore, the ALJ properly relied on the testimony the VE gave in response to the
hypothetical. See id.

-- 4 of 5 --

5
7. The district court did not err in refusing to remand the case under
sentence six of 42 U.S.C. § 405(g) because the new evidence submitted is not
relevant to the disability determination and is therefore not material. See 42 U.S.C.
§ 405(g) (remand for consideration of new evidence warranted only if, among
other things, the evidence is “material”). Further, because the evidence submitted
was not material, we need not address whether Curtis demonstrated “good cause”
for not providing the evidence earlier. See id.
8. Finally, we are not persuaded that the ALJ was biased against Curtis.
The record does not reflect that the ALJ was clearly unable to render a fair
judgment. See Rollins v. Massanari, 261 F.3d 853, 857–58 (9th Cir. 2001).
Accordingly, the presumption of impartiality was not rebutted.
AFFIRMED.

-- 5 of 5 --