Keith Kilbourne v. ANDREW M. SAUL, Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEITH KILBOURNE,
Plaintiff-Appellant,
v.
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
No. 17-35488
No. 3:16-CV-00590-HZ
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Submitted July 9, 2019**
Before: FARRIS, D. NELSON, and TALLMAN, Circuit Judges.
Keith Kilbourne appeals the district court’s affirmance of the Commissioner
of Social Security’s denial of his 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, Attmore v. Colvin, 827 F.3d 872, 875
* 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
JUL 11 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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(9th Cir. 2016), and we affirm.
The ALJ provided specific and legitimate reasons for assigning only some
weight to examining psychologist Dr. Duvall’s opinion. The ALJ did not err by
relying upon evidence of Kilbourne’s secondary gain behavior to afford Dr.
Duvall’s opinion less weight. In addition to examining Kilbourne, Dr. Duvall also
based his opinion on Kilbourne’s subjective reports, the veracity of which Dr.
Duvall questioned, as well as Kilbourne’s medical records, including those from
the time during which Kilbourne exaggerated his symptoms and exhibited drug-
seeking behavior. Kilbourne does not contest that the ALJ properly discounted his
testimony based on evidence of secondary-gain motivation and, in turn, an ALJ
may discount medical opinion evidence that depends upon a claimant’s unreliable
subjective reports. See Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002).
Even assuming the ALJ erred in relying upon evidence of secondary gain on
Kilbourne’s part, the ALJ provided other valid reasons for discounting Dr.
Duvall’s opinion, rendering any error harmless. See Molina v. Astrue, 674 F.3d
1104, 1115 (9th Cir. 2012).
The ALJ also did not err by giving Dr. Duvall’s opinion less than full weight
concerning Kilbourne’s social limitations based on his marriage and attendance of
a Substance Abuse Treatment Program (“SATP”). While the record includes
evidence supporting Kilbourne’s characterization of his marital strife, it also

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includes substantial evidence that Kilbourne and his wife were able to work
through marital issues and that their relationship improved with counseling.
Although Kilbourne argues the ALJ should have construed evidence pertaining to
his marriage differently, he has not shown the ALJ offered an unreasonable
interpretation or that the ALJ’s interpretation lacks substantial evidentiary support.
See Ryan v. Comm’r Soc. Sec. Admin., 528 F.3d 1194, 1198 (9th Cir. 2008).
In addition, the ALJ did not err by relying upon Kilbourne’s participation in
the SATP group therapy meetings. We reject Kilbourne’s argument that the ALJ
failed to explain how Kilbourne’s “mandatory court-ordered attendance at SATP
group meetings is inconsistent with Dr. Duvall’s opinion,” as the record indicates
Kilbourne continued attending group meetings for over a year after completing the
court-ordered portion of the program and actively participated in many therapy
sessions, contrary to the social restrictions Dr. Duvall opined. Kilbourne has not
shown the ALJ’s interpretation of the evidence was unreasonable or lacks
substantial evidentiary support. See Ryan, 528 F.3d at 1198; Revels v. Berryhill,
874 F.3d 648, 654 (9th Cir. 2017).
Kilbourne also has not shown the ALJ erred by citing Kilbourne’s ability to
work in the past despite his PTSD symptoms. Kilbourne does not point to evidence
that his symptoms worsened after his alleged onset date that the ALJ failed to
assess. Thus, Kilbourne has not carried his burden to show his condition

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deteriorated, and so he has not demonstrated the ALJ erred in relying on his past
work to give only some weight to Dr. Duvall’s opinion. See Valentine v. Comm’r
Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009) (explaining the “claimant has
the burden to prove he is disabled”).
Lastly, while Kilbourne asserted in his opening brief that the ALJ erred by
giving little weight to the Department of Veterans Affairs’ finding that Kilbourne
was disabled, he conceded in his reply brief that he has waived this argument.
Therefore, the Court will not address it.
AFFIRMED.

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