Jacob Michael Schotthoefer v. KILOLO KIJAKAZI, Acting Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JACOB MICHAEL SCHOTTHOEFER,
Plaintiff-Appellant,
v.
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
No. 22-35162
D.C. No. 2:20-cv-00993-AC
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
John V. Acosta, Magistrate Judge, Presiding
Submitted December 5, 2022**
San Francisco, California
Before: LUCERO,*** BRESS, and VANDYKE, Circuit Judges.
Jacob Schotthoefer appeals the district court’s order affirming the
Commissioner of Social Security’s denial of disability benefits and supplemental
* 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 Carlos F. Lucero, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
FILED
DEC 7 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Social Security income. “We review the district court’s order affirming the
[Administrative Law Judge’s (ALJ’s)] denial of social security benefits de novo and
will disturb the denial of benefits only if the decision contains legal error or is not
supported by substantial evidence.” Lambert v. Saul, 980 F.3d 1266, 1270 (9th Cir.
2020) (citation and quotation marks omitted). We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
1. Substantial evidence supports the ALJ’s discounting of Schotthoefer’s
subjective symptom testimony. When there is no evidence of malingering, an ALJ
may “reject [a] claimant’s testimony about the severity of [his] symptoms only by
offering specific, clear and convincing reasons for doing so.” Smith v. Kijakazi, 14
F.4th 1108, 1112 (9th Cir. 2021) (quoting Garrison v. Colvin, 759 F.3d 995, 1014–
15 (9th Cir. 2014)). In considering Schotthoefer’s residual functional capacity in the
absence of substance abuse, see Parra v. Astrue, 481 F.3d 742, 747 (9th Cir. 2007),
the ALJ found Schotthoefer’s testimony concerning the intensity, persistence, and
limiting effects of his symptoms to be inconsistent with other evidence in the record
showing improvement during periods of sobriety. Moreover, the ALJ found that
Schotthoefer’s work activity and activities of daily living undermined his testimony

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as to claimed extreme concentration deficits and social isolation. The record
supports the ALJ’s determination.1
2. The ALJ properly evaluated the persuasiveness of Counselor
Porterfield’s medical opinion using the factors listed in 20 C.F.R. § 404.1520c, and
the ALJ’s discounting of Porterfield’s opinion is supported by substantial evidence.
See Woods v. Kijakazi, 32 F.4th 785, 787, 791–92 (9th Cir. 2022) (explaining that
the “specific and legitimate” standard for evaluating medical opinions no longer
governs in light of new regulations, but that “an ALJ cannot reject an examining or
treating doctor’s opinion as unsupported or inconsistent without providing an
explanation supported by substantial evidence”). The ALJ reasonably explained that
Porterfield’s opinion as to Schotthoefer’s limitations in the absence of substance
abuse was unsupported and inconsistent with other evidence in the record. In
particular, the ALJ reasonably relied upon Schotthoefer’s attentiveness during group
therapy sessions, his improvements during periods of sobriety, and his work and
daily living activities to conclude that Porterfield’s opinion as to Schotthoefer’s
marked social limitations was not consistent with the record. Schotthoefer’s
additional challenges to the ALJ’s consideration of Porterfield’s opinion likewise
lack merit.
1 Because we conclude that the ALJ provided specific, clear, and convincing reasons
for discounting Schotthoefer’s subjective symptom testimony, we need not address
the Commissioner’s argument that Schotthoefer was malingering in his testimony.

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3. In assessing the persuasiveness of Dr. Whitehead’s consultative
medical opinion, the ALJ properly considered the factors listed in 20 C.F.R.
§ 404.1519p. The ALJ reasonably determined that Dr. Whitehead’s opinion
regarding Schotthoefer’s social limitations in the absence of substance abuse was
inconsistent with the rest of the medical record, and that Dr. Whitehead had not
sufficiently considered the degree of impairment caused by substance abuse. The
ALJ’s determination is supported by substantial evidence, including that
Schotthoefer had fewer symptoms during periods of sobriety and was able to then
engage in work and other productive activities.
4. Schotthoefer’s arguments regarding residual functional capacity and
vocational hypotheticals are premised on the asserted validity of the discounted
subjective symptom testimony and the medical opinions of Counselor Porterfield
and Dr. Whitehead. Because the ALJ reasonably discounted that evidence,
Schotthoefer’s other arguments fail.
AFFIRMED.

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