Daniel Mitchell v. KILOLO KIJAKAZI, Acting Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL MITCHELL,
Plaintiff-Appellant,
v.
KILOLO KIJAKAZI, Acting
Commissioner of Social Security,
Defendant-Appellee.
No. 21-35647
D.C. No. 3:20-cv-05853-SKV
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Sarah Kate Vaughan, Magistrate Judge, Presiding
Submitted November 10, 2022**
Seattle, Washington
Before: IKUTA and COLLINS, Circuit Judges, and FITZWATER,*** District Judge.
FILED
DEC 9 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).
*** The Honorable Sidney A. Fitzwater, United States District Judge for the
Northern District of Texas, sitting by designation.

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Daniel Mitchell (“Mitchell”) appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of his application for supplemental security
income under Title XVI of the Social Security Act. The district court had jurisdiction
under 42 U.S.C. §§ 405(g) and 1383(c)(3). We have jurisdiction under 28 U.S.C. §
1291. Reviewing the district court’s judgment de novo and the ALJ’s findings for
substantial evidence, Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 2016), we affirm.
1. Substantial evidence supports the administrative law judge’s (“ALJ’s”)
finding that inconsistencies in Mitchell’s testimony undermine the weight his
testimony should be afforded. The ALJ discussed in detail several inconsistencies
between Mitchell’s testimony and the record before the Commissioner, including the
medical evidence presented to the Commissioner and Mitchell’s reported activities.
20 C.F.R. § 416.929(a), (c) (2017); Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th
Cir. 1997).
2. Substantial evidence supports the ALJ’s decisions regarding the
persuasiveness of various medical opinions provided to the Commissioner. The ALJ
considered the extent to which the opinions were based on the unreliable subjective
reports of Mitchell and evaluated the opinions’ consistency and supportability against
other evidence in the record, including objective clinical findings and observations
and Mitchell’s contrasting reported activities. 20 C.F.R. § 416.920c (2017); Garrison
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v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (“An ALJ can satisfy the ‘substantial
evidence’ requirement by ‘setting out a detailed and thorough summary of the facts
and conflicting clinical evidence, stating his interpretation thereof, and making
findings.’”) (quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998))); see also
Ford v. Saul, 950 F.3d 1141, 1155 (9th Cir. 2020) (explaining that conflicts between
a physician’s opinion and the claimant’s activity level is a reason for rejecting the
medical opinion).
3. Mitchell failed to preserve his separation of powers challenge. He raises this
argument for the first time on appeal, and this Court generally does “not ‘consider an
issue not passed upon below.’” Foti v. City of Menlo Park, 146 F.3d 629, 638 (9th
Cir. 1998) (quoting Golden Gate Hotel Ass’n v. City & Cnty. of S.F., 18 F.3d 1482,
1487 (9th Cir. 1994)). Even if Mitchell had preserved this contention, his counsel
recognized in a Fed. R. App. P. 28(j) letter (citing Kaufmann v. Kijakazi, 32 F.4th 843
(9th Cir. 2022)) that his constitutional arguments concerning the tenure of the
Commissioner of Social Security are foreclosed.
AFFIRMED.
3

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