Cobb Laverne Mutter v. KILOLO KIJAKAZI, Acting Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
COBB LAVERNE MUTTER,
Plaintiff-Appellant,
v.
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
No. 18-15877
D.C. No. 2:16-cv-02381-KJN
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Kendall J. Newman, Magistrate Judge, Presiding
Submitted October 8, 2021**
Before: THOMAS, Chief Judge, HAWKINS and MCKEOWN, Circuit Judges.
Cobb Laverne Mutter 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
* 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
OCT 13 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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U.S.C. § 1291 and 42 U.S.C. § 405(g). We review the district court’s decision de
novo and will reverse only if the Administrative Law Judge’s (“ALJ”) findings are
based on legal error or are not supported by substantial evidence. Attmore v.
Colvin, 827 F.3d 872, 875 (9th Cir. 2016). We affirm.
The ALJ provided specific, clear, and convincing reasons to discount
Mutter’s symptom testimony as inconsistent with and unsupported by the record
and based on a lengthy gap in treatment, conservative treatment, and evidence that
his conditions were managed with medication. See Molina v. Astrue, 674 F.3d
1104, 1112 (9th Cir. 2012) (ALJ may discount a claimant’s symptom testimony
based on inconsistencies); Tommasetti v. Astrue, 533 F.3d 1035, 1039-41 (9th Cir.
2008) (ALJ may discount a claimant’s subjective complaints based on an
“unexplained or inadequately explained failure to seek treatment or follow a
prescribed course of treatment” or evidence of relief with conservative treatment);
Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (ALJ may consider a lack of
corroborating medical evidence as one factor in the credibility determination); see
also 20 C.F.R. § 404.1529(c)(3)(iv) (ALJ may account for the effectiveness of a
claimant’s medication).
The ALJ considered the Veterans Affairs(“VA”) disability rating, which
cited and relied on the opinion of Dr. Geoffrey Hutchinson and provided specific,
valid reasons to reject the disability rating as conclusory, lacking record support,

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and inconsistent with Mutter’s subsequent travels and missionary activity. See
Berry v. Astrue, 622 F.3d 1228, 1236 (9th Cir. 2010) (ALJ properly discounted VA
disability rating where evidence that post-dated the disability rating demonstrated
improvement); Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 695 (9th Cir.
2009) (ALJ properly discounted VA disability rating where the record before the
ALJ included evidence that undermined the disability rating and was not available
to the VA at the time of its rating). Because the ALJ addressed the substance of
Dr. Hutchinson’s opinion and provided specific and legitimate reasons to discount
it, any error in not separately addressing Dr. Hutchinson’s opinion was harmless.
See Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (error is harmless where it is
“inconsequential to the ultimate nondisability determination” (internal quotation
marks and citation omitted)); see also id. at 1154-55 (ALJ may reject a medical
opinion as inconsistent with claimant’s activities); Thomas v. Barnhart, 278 F.3d
947, 957 (9th Cir. 2002) (ALJ may reject a medical opinion that is conclusory and
inadequately supported by clinical findings).
The ALJ did not err by failing to address the VA’s notation that Mutter’s
additional disability claims were independently ratable, where the administrative
record does not include the VA determinations concerning these claims. By
inquiring as to outstanding records and keeping the record open, the ALJ met his
duty to inquire. See McLeod v. Astrue, 640 F.3d 881, 886 (9th Cir. 2011) (where

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the ALJ has reason to believe a VA disability rating exists, the ALJ has a duty to
inquire).
The ALJ did not err in assigning great weight to the 2014 opinions of
consulting psychologist Troy Ewing as to Mutter’s mental functioning prior to his
date last insured in 2009, where Mutter alleged ongoing disability and testified that
his mental health condition remained the same. The ALJ reasonably incorporated
the limitations Dr. Ewing assessed into its determination of Mutter’s residual
functioning capacity (“RFC”). See Stubbs-Danielson v. Astrue, 539 F.3d 1169,
1174 (9th Cir. 2008) (ALJ reasonably translated limitations assessed into concrete
work restrictions).
The ALJ provided specific and legitimate reasons to assign little weight to
the opinion of consulting psychologist Robert Morgan as inconsistent with and
unsupported by the medical record, inconsistent with Mutter’s missionary work
and daily activities, and based on Mutter’s subjective allegations. See Ford, 950
F.3d at 1154-55 (“A conflict between a treating physician’s opinion and a
claimant’s activity level is a specific and legitimate reason for rejecting the
opinion.”); Tommasetti, 533 F.3d at 1041 (ALJ may reject an opinion that is
“inconsistent with the medical records” or based on the claimant’s properly
discredited complaints); Thomas, 278 F.3d at 957 (ALJ may reject an opinion that
is conclusory and “inadequately supported by clinical findings”).

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The ALJ did not err in assigning great weight to the opinion of
nonexamining medical advisor Dr. Cynthia Horn. See Thomas, 278 F.3d at 956-57
(ALJ is responsible for resolving conflicts in the medical evidence and weighing
medical opinions).
Substantial evidence supports the ALJ’s RFC formulation. See id. at 954
(this court must uphold the ALJ’s rational interpretation of the evidence).
AFFIRMED.

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