NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAWAYNE MOGENSEN, 

Plaintiff-Appellant, 

 v. 

ANDREW M. SAUL, Commissioner of 

Social Security, 

Defendant-Appellee.

No. 17-56620

No. 2:16-cv-05291-PSG-AS

MEMORANDUM*

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).

FILED

AUG 26 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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.
3

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.