NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 22 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KASSANDRA CUPP, No. 21-35754
Plaintiff-Appellant, D.C. No. 2:20-cv-00319-TOR
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, District Judge, Presiding
Submitted August 11, 2022**
Seattle, Washington
Before: CHRISTEN, LEE, and FORREST, Circuit Judges.
Claimant Kassandra Cupp appeals from the district court’s ruling affirming
the Commissioner of Social Security’s denial of her application for disability
benefits. Cupp contends that the Administrative Law Judge (ALJ) improperly
*
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).
evaluated her mental impairments.1 We review the district court’s order de novo and
reverse only if the ALJ’s 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.
Substantial evidence supports the ALJ’s mental-impairment determination.
Biestek v. Berryhill, 139 S. Ct. 1153, 1154 (2019). The record evidence establishes
that Cupp had a history of providing false information about her mental impairments.
The ALJ relied on medical expert Jay Toews’s assessment of the medical record for
the relevant period, which was supported by exhaustive reference to the record
evidence and was subject to cross-examination. As Dr. Toews testified, the record
evidence establishes that Cupp self-reported nearly all her mental issues. And
Cupp’s inconclusive mental-impairment diagnoses indicated that providers “really
could not make a determination of whether there was any physical or physiological
basis for [her] symptoms.”
Cupp’s argument that the 2016 decision denying disability benefits supports
a finding of medically determinable mental impairments is unpersuasive. The ALJ
issued the earlier disability-benefits decision over a year-and-a-half before the
disability period relevant to this appeal began. Additionally, although the prior
decision found severe mental impairments, it did not establish that they would
1
Cupp initially challenged the constitutionality of the delegation of authority
to the Commissioner. Cupp has withdrawn that argument given our decision in
Kauffman v. Kijakazi, 32 F.4th 843 (9th Cir. 2022).
persist; the prior decision also referenced Cupp’s tendency to offer false medical
information and noted, among other things, that her subjective mental complaints
were inconsistent with her activities.
We are similarly unpersuaded by Cupp’s claim that her treatment notes
include “ample evidence” of clinical findings supporting her mental impairment
diagnoses. A significant portion of the medical evidence that she discusses predates
her March 2018 alleged disability onset date. Moreover, some of the positive
psychological examination findings that Cupp cites are from a counselor, who is not
an acceptable medical source for establishing a medically determinable impairment.
20 C.F.R. §§ 416.902(a), 416.921.
Finally, Cupp waived her argument that the ALJ improperly ignored state
agency consultants Drs. Covell’s and Anderson’s formal diagnoses that she suffered
from severe mental impairments, by not raising it to the district court. See Club One
Casino, Inc. v. Bernhardt, 959 F.3d 1142, 1153 (9th Cir. 2020); Greger v. Barnhart,
464 F.3d 968, 973 (9th Cir. 2006).
AFFIRMED.