NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 26 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAWAYNE MOGENSEN, No. 17-56620
Plaintiff-Appellant, No. 2:16-cv-05291-PSG-AS
v. MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Submitted August 22, 2019**
Before: GOODWIN, LEAVY, and SILVERMAN, Circuit Judges.
Dawayne Mogensen appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of Mogensen’s 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, Molina v.
*
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).
Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012), and we affirm.
The ALJ gave specific, clear, and convincing reasons for discounting
testimony from Mogensen concerning the severity of his symptoms and
limitations. See Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir.
2009) (ALJ may not rely solely on lack of supporting objective medical evidence,
but may consider it along with other factors); Tommasetti v. Astrue, 533 F.3d 1035,
1039-40 (9th Cir. 2008) (ALJ may consider claimant’s daily activities and
inconsistency between conservative treatment and severity of alleged symptoms);
Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (ALJ
may consider evidence that treatment alleviated symptoms); Thomas v. Barnhart,
278 F.3d 947, 960 (9th Cir. 2002) (ALJ may consider claimant’s demeanor).
The ALJ proffered specific and legitimate reasons, supported by substantial
evidence, for discounting the contradicted opinions of treating physicians Drs.
Billington, Montgomery, Kahmann, DiGiaro, and Van Kirk. See Bray, 554 F.3d at
1228. The ALJ’s errors in rejecting Dr. Billington’s opinion because she does not
specialize in mental health treatment and Dr. Montgomery’s opinion based on
information about his treatment of other patients were harmless because the ALJ
provided other specific and legitimate reasons for discounting the opinions. See
Molina, 674 F.3d at 1115.
2
Although the ALJ erroneously attributed PA Ebling’s June 2014 opinion to
Dr. Kahmann, Mogensen has not shown that this error affected the nondisability
determination. See 20 C.F.R. § 404.1527(d) (opinions as to whether claimants are
unable to work are “not medical opinions” as this issue is reserved to the
Commissioner). Any error therefore was harmless. See Molina, 574 F.3d at 1115.
Mogensen has not shown any error in the ALJ’s formulation of his Residual
Functional Capacity. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174-75 (9th
Cir. 2008) (upholding an ALJ’s translation of moderate limitations concerning
concentration or pace into a limitation to unskilled work); Burch v. Barnhart, 400
F.3d 676, 683 (9th Cir. 2005) (finding no error where claimant did not point to any
evidence of functional limitations due to an impairment).
AFFIRMED.
3