NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 19 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JON-JON APPLEGATE, No. 20-15474
Plaintiff-Appellant, D.C. No.
2:18-cv-00581-JAM-CKD
v.
ANDREW M. SAUL, Commissioner of MEMORANDUM*
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted April 15, 2021**
San Francisco, California
Before: THOMAS, Chief Judge, and R. NELSON and HUNSAKER, Circuit
Judges.
Jon-Jon Applegate appeals the district court’s decision affirming the
Commissioner of Social Security’s denial of his application for Disability
Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. § 423. 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).
have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291. We review the
district court’s order affirming the denial of Social Security benefits de novo and
reverse only if the Administrative Law Judge’s (ALJ) decision was not supported
by substantial evidence or was based on legal error. Ghanim v. Colvin, 763 F.3d
1154, 1159 (9th Cir. 2014). We affirm.
1. Applegate did not waive his right to challenge the district court’s
decision that substantial evidence supported the Commissioner’s decision by
failing to object to the magistrate judge’s finding and recommendation. A party
who does not object to the magistrate judge’s report waives his right to challenge
factual findings but retains his right to appeal legal conclusions. Baxter v. Sullivan,
923 F.2d 1391, 1394 (9th Cir. 1991). “[W]hether the ALJ’s findings are supported
by substantial evidence is a question of law.” Id. at 1394–95.
2. The ALJ did not err in evaluating the medical opinion evidence. An
ALJ may reject the contradicted opinion of a treating or examining physician by
giving specific and legitimate reasons for doing so that are supported by substantial
evidence. Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017); Lester v. Chater,
81 F.3d 821, 830–31 (9th Cir. 1995). “[W]hen an examining physician provides
‘independent clinical findings that differ from the findings of the treating
physician,’ such findings are ‘substantial evidence.’” Orn v. Astrue, 495 F.3d 625,
632 (9th Cir. 2007) (internal quotation omitted). Contrary to Applegate’s assertion,
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his treating physician Jane Wang, M.D. was contradicted by an examining
physician who offered independent clinical findings that differed from Dr. Wang’s,
which renders the clear-and-convincing-reasons standard that he advances
inapplicable. See Lester, 81 F.3d at 830. And the ALJ gave specific and legitimate
reasons for partially rejecting Dr. Wang’s opinion that are supported by an
abundance of evidence. Specifically, the ALJ correctly noted that Applegate’s
imaging studies reflect mostly mild objective findings and that Dr. Wang and
examining physician William Ramsey, M.D.’s reports documented his improving
condition. Id. at 831. The ALJ also noted that the opinions of nonexamining
consultants, to which he gave great weight, were consistent with the mild objective
findings on imaging studies and the improved findings on physical examinations.
But see id.
3. The ALJ gave “specific, clear and convincing reasons” for partially
discounting Applegate’s subjective symptom testimony. See Molina v. Astrue, 674
F.3d 1104, 1112 (9th Cir. 2012), superseded by regulation on other grounds
(quotations omitted). The ALJ cited conflicts between Applegate’s allegations of
disabling physical symptoms and the objective medical evidence, including
imaging studies and examinations showing largely unremarkable findings and
observations. Carmickle v. Comm’r, SSA, 533 F.3d 1155, 1161 (9th Cir. 2008).
The ALJ also noted, for example, that Applegate’s testimony indicated that he
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could walk only short distances, yet medical reports note that he occasionally
would walk for hours. See Rollins v. Massanari, 261 F.3d 853, 858 (9th Cir. 2001).
No evidence supports Applegate’s assertion that his mental impairments
caused him to experience more extreme symptoms than would normally be
expected. The sole provider who diagnosed Applegate with a psychological pain
disorder noted only that it would delay recovery, not that it would cause a greater
level of symptoms. Further, the ALJ found Applegate’s allegations related to his
psychological impairment only partially credible due to his limited treatment
history, the treatment records that do exist, and “the observations by the claimant’s
treatment providers.” Specifically, it is worth noting that Applegate’s mental health
providers routinely reported that he was cooperative and had logical thinking and
good attention and concentration.
4. Finally, substantial evidence supports the ALJ’s vocational findings,
Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995), and any error that may have
occurred was harmless. See Shaibi v. Berryhill, 883 F.3d 1102, 1110 n.7 (9th Cir.
2018). The vocational expert (VE) testimony established that a person with
Applegate’s residual functional capacity (RFC) could perform three jobs that exist
in the national economy. As discussed above, substantial evidence supports the
limitations the ALJ found, and the hypothetical questions to the VE included these
limitations. Valentine v. Comm’r, SSA., 574 F.3d 685, 690 (9th Cir. 2009). But
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even if the first two jobs the VE identified (electrical equipment inspector and x-
ray inspector) are inconsistent with the reasoning level noted in Applegate’s RFC,
this error is harmless because one of the jobs the VE identified (bottling line
attendant) indisputably meets the RFC presented by the ALJ and exists in
sufficient numbers in the national economy. 20 C.F.R. § 404.1566(b); see Shaibi,
883 F.3d at 1110 n.7.
AFFIRMED.
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