                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 02 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



IVAN L. ALEKSEYEVETS,                            No. 12-35079

              Plaintiff - Appellant,             D.C. No. 2:10-cv-02058-JCC

  v.
                                                 MEMORANDUM *
CAROLYN W. COLVIN, Commissioner
of Social Security,

              Defendant - Appellee.



                    Appeal from the United States District Court
                      for the Western District of Washington
                   John C. Coughenour, District Judge, Presiding

                       Argued and Submitted April 12, 2013
                               Seattle, Washington

Before: TASHIMA and CALLAHAN, Circuit Judges, and SEABRIGHT, District
Judge.**

       Appellant Ivan Alekseyevets (“Appellant”) appeals an adverse decision on

his claim for Supplemental Social Security Income disability benefits (“SSI”),


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable J. Michael Seabright, District Judge for the U.S.
District Court for the District of Hawaii, sitting by designation.
based on the administrative law judge’s (“ALJ”) finding that he was not disabled.

The district court affirmed the ALJ’s decision. Appellant contends that the ALJ

erred by failing to: (1) find that Appellant had established a colorable mental

impairment claim and utilize the psychiatric review technique (“PRT”);

(2) consider Appellant’s mental limitations in applying the Medical-Vocational

Guidelines (“the Grids”); (3) adopt a previous ALJ’s Residual Functional Capacity

(“RFC”) determination after finding that Appellant had not shown changed

circumstances; and (4) credit a physician assistant’s medical reports and

Appellant’s testimony in formulating the RFC.

      We have jurisdiction under 28 U.S.C. § 1291 and review the district court’s

decision to uphold an ALJ’s benefits decision de novo. See Hiler v. Astrue, 687

F.3d 1208, 1211 (9th Cir. 2012). We will “reverse [a nondisability finding] only if

the ALJ’s decision was not supported by substantial evidence in the record as a

whole or if the ALJ applied the wrong legal standard.” Molina v. Astrue, 674 F.3d

1104, 1110 (9th Cir. 2012). We conclude that the ALJ’s decision is supported by

substantial evidence in the record and thus affirm the district court.1




      1
             Because the parties are familiar with the facts and procedural history,
we restate them here only as necessary to explain our decision.

                                           2
      1.     Appellant contends that we should remand this case because the ALJ

failed to apply the PRT in assessing Appellant’s mental impairment claim. We

disagree. The ALJ’s determination that Appellant failed to present a colorable

claim of mental impairment was supported by substantial evidence in the record,

and thus utilization of the PRT was not required. See Keyser v. Comm’r of Soc.

Sec. Admin., 648 F.3d 721, 726 (9th Cir. 2011). The ALJ reasonably rejected

reports from Dr. Cavenee and Dr. Spence because the reports were brief, and

seemed to be limited by the language barrier. The ALJ noted that these reports

were contradicted by both the neurological exam performed by Dr. Tran and the

testimony of Dr. Spence, the Medical Examiner, who indicated that Appellant’s

descriptions of his symptoms were inconsistent with the medical testing.2 See

Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (determining that an ALJ

need not accept a medical opinion which is “brief and conclusionary in form with

little in the way of clinical findings to support [its] conclusion”) (internal




      2
             During Dr. Spence’s testimony, he opined that the inconsistencies
could be explained by somatization. Appellant contends that this statement serves
as a diagnosis of somatization and strengthens Appellant’s mental impairment
claim. This argument is without merit. It is clear from the record that Dr.
Spence’s discussion of somatization was used to illustrate deficiencies in the
medical reports and was not an actual diagnosis.

                                            3
quotations omitted)). Thus, the ALJ’s findings are supported by substantial

evidence in the record.

      2.     Appellant contends that the ALJ improperly applied the Grids because

he did not take Appellant’s mental claims into consideration. A claimant fails to

show error in the Grid analysis by merely reiterating his dispute with the RFC

finding. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175–76 (9th Cir. 2008).

Because we find Appellant’s prior argument as to whether he had a colorable

mental impairment claim unpersuasive, this argument also fails.

      3.     Appellant also argues that the because the ALJ found no changed

circumstances, he erred by failing to adopt a previous ALJ’s RFC determination

from a prior proceeding. Under Chavez v. Bowen, 844 F.2d 691, 694 (9th Cir.

1998), an applicant previously found not disabled is presumably not disabled

unless he can show changed circumstances indicating a greater level of disability

since the date of the prior decision. Although the first ALJ’s RFC findings are

entitled to “some res judicata consideration,” id., the Chavez presumption does not

prohibit a subsequent ALJ from considering new medical information and making

an updated RFC determination. See Stubbs-Danielson, 539 F.3d at 1173. Here,

the ALJ did not err by considering new medical information and revising

Appellant’s RFC based on recent medical evaluations and results. Moreover, the


                                         4
prior ALJ found that Appellant was not disabled and was generously assuming the

lowest functional capacity possible, which was still insufficient to support a

disability finding.

      4.     In determining Appellant’s RFC, the ALJ was justified in assigning

less weight to the opinion of Ms. Bella Arshinova, a physician assistant, because

she was not a medical doctor and was thus considered an “other source” as

opposed to an “acceptable medical source.” See Molina, 674 F.3d at 1111.

Moreover, the ALJ was justified in disregarding Appellant’s subjective claims

regarding the severity of his symptoms because he provided “specific, cogent

reasons” based upon the record for doing so. Morgan v. Comm’r of Soc. Sec.

Admin., 169 F.3d 595, 599 (9th Cir. 1999). For the foregoing reasons, the district

court’s judgment is AFFIRMED.




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