NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 10 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEVIN FOSTER, No. 21-16271
Plaintiff-Appellant, D.C. No. 3:20-cv-08169-SPL
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Steven Paul Logan, District Judge, Presiding
Submitted August 8, 2022**
San Francisco, California
Before: RAWLINSON, BADE, and BRESS, Circuit Judges.
Kevin Foster appeals the district court’s order affirming the Social Security
Administrator’s denial of his application for disability insurance benefits and
supplemental security income. 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 decision de novo and the agency’s decision for
substantial evidence and legal error. Terry v. Saul, 998 F.3d 1010, 1012 (9th Cir.
2021). “If the evidence can support either affirming or reversing the ALJ’s
conclusion, we may not substitute our judgment for that of the ALJ.” Robbins v.
Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). We affirm.
1. Foster fails to show a due process violation related to his assertion that the
Administrative Law Judge (“ALJ”) effectively reopened the prior claim. There
was no de facto reopening because the ALJ did not consider “on the merits” the
issue of Foster’s disability during the previously adjudicated period. See Lester v.
Chater, 81 F.3d 821, 827 n.3 (9th Cir. 1995). The ALJ also did not reopen the
prior determination of Foster’s impairments or his residual functional capacity
(“RFC”). Rather, she found that Foster rebutted the presumption of continuing
nondisability as to those issues and then considered the “unadjudicated period”
since the date of the last decision. See id. at 827–28 (noting that when a claimant
rebuts the presumption of continuing nondisability, the period of the subsequent
disability claim begins the day after the date of the prior unfavorable decision).
Further, any error under Chavez v. Bowen, 844 F.2d 691, 694 (9th Cir.
1998), arising from ALJ’s alleged failure to give preclusive effect to the prior
ALJ’s findings regarding Foster’s past relevant work is harmless. See Stout v.
Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (finding that
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harmless error principles apply when an error is inconsequential to the ultimate
nondisability determination).
To the extent that Foster’s brief could be construed as challenging the ALJ’s
failure to reopen his previous claim, judicial review is unavailable because Foster
does not demonstrate a colorable constitutional claim. See Califano v. Sanders,
430 U.S. 99, 107–09 (1977) (judicial review of failure to reopen available only
when claimant raises colorable constitutional claim).
2. Foster argues that the ALJ erred by discounting the opinions of treating
physicians Dr. El-Harakeh and Dr. Gutgsell. These opinions were contradicted by
the opinions of agency reviewing doctors, Dr. Ostrowski, and Dr. Griffith. An
ALJ may discount a treating doctor’s contradicted opinion “by providing specific
and legitimate reasons that are supported by substantial evidence.” Garrison v.
Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (citation omitted). Here, the ALJ found
that the opinions of Dr. El-Harakeh and Dr. Gutgsell, provided on check-box
forms, were inconsistent with the medical evidence of record.1 This is a specific
and legitimate reason to discount a treating physician’s opinion. See Ford v. Saul,
1
The Commissioner concedes that the record does not support the ALJ’s
conclusion that Dr. El-Harakeh “did not examine [Foster] in order to render his
opinion.” This error is harmless because the ALJ provided other valid reasons to
discount Dr. El-Harakeh’s opinion, which were supported by substantial evidence.
See Marsh v. Colvin, 792 F.3d 1170, 1172–73 (9th Cir. 2015) (holding that
harmless error analysis applies to error related to a treating source opinion).
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950 F.3d 1141, 1154–55 (9th Cir. 2020) (approving rejection of treating
physician’s opinion as inconsistent with the medical evidence and the claimant’s
activities). The ALJ also discounted Dr. El-Harakeh’s opinion because she found
it based on Foster’s subjective complaints, which she had discredited.2 This is also
a specific and legitimate reason that is supported by substantial evidence. See
Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (stating that an ALJ
properly rejects a treating physician’s opinion that is based on a claimant’s
discredited self-reports); see also Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir.
2002). Foster urges a different interpretation of the evidence, but the ALJ’s
conclusion is supported by substantial evidence. See Tommasetti, 533 F.3d at
1041.
3. Foster also challenges the ALJ’s determination of his RFC. He argues
that the ALJ’s RFC determination is not supported by substantial evidence because
the state agency non-examining physicians did not render medical opinions but
considered themselves bound by the prior ALJ’s determination of Foster’s RFC.
Foster waived this argument by failing to present it to the district court, and he
does not assert any basis for not applying waiver. Greger v. Barnhart, 464 F.3d
968, 973 (9th Cir. 2006).
2
Foster does not challenge the ALJ’s discrediting of his symptom testimony
and thus, has waived such an argument. See Paladin Assocs., Inc. v. Mont. Power
Co., 328 F.3d 1145, 1164 (9th Cir. 2003).
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Even if not waived, this argument fails. An opinion on a claimant’s RFC is
“not [a] medical opinion[].” 20 C.F.R. § 404.1527(d)(2). Rather, it is an
administrative finding based on “all of the relevant medical and other evidence.”
Id. §§ 404.1545(a)(3), 404.1527(d)(2), 404.1546(c). An ALJ “consider[s] opinions
from medical sources” on the issue of a claimant’s RFC, but “the final
responsibility for deciding [this issue] is reserved to the Commissioner.” Id.
§ 404.1527(d)(2); see also Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001).
The record reflects that the ALJ considered the relevant medical and opinion
evidence and assessed an RFC that is supported by substantial evidence. See Bray
v. Comm’r, Soc. Sec. Admin., 554 F.3d 1219, 1227–28 & n.8 (9th Cir. 2009)
(approving ALJ’s reliance on state agency evidence to determine RFC).
We have carefully considered and reject Foster’s remaining arguments as
without merit.
AFFIRMED.
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