NOT FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE NINTH CIRCUIT
`
`FILED
`
`
`JAN 22 2025
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
`
`
`
`
`No. 24-803
`
`
`D.C. No. 6:20-cv-1938
`
`
`
`MEMORANDUM**
`
`
`
`
`
`
`
` Plaintiff-Appellant,
`
`DIRK DUNNING,
`
`
`
` v.
`
`
`CAROLYN W. COLVIN*, Acting
`Commissioner of Social Security,
`
`
`
`
`
`
`
`
`
` Defendant-Appellee.
`
`
`
`Appeal from the United States District Court
`for the District of Oregon
`Michael W. Mosman, Presiding
`
`Submitted January 16, 2025***
`San Francisco, California
`
`
`
`*
`Carolyn W. Colvin is substituted for her predecessor Martin O’Malley,
`Commissioner of the Social Security Administration, as Acting Commissioner of
`the Social Security Administration, pursuant to Federal Rule of Appellate
`Procedure 43(c).
`
`
`** 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).
`
`
`
`
`
`
`
`
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE NINTH CIRCUIT
`
`FILED
`
`
`JAN 22 2025
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
`
`
`
`
`No. 24-803
`
`
`D.C. No. 6:20-cv-1938
`
`
`
`MEMORANDUM**
`
`
`
`
`
`
`
` Plaintiff-Appellant,
`
`DIRK DUNNING,
`
`
`
` v.
`
`
`CAROLYN W. COLVIN*, Acting
`Commissioner of Social Security,
`
`
`
`
`
`
`
`
`
` Defendant-Appellee.
`
`
`
`Appeal from the United States District Court
`for the District of Oregon
`Michael W. Mosman, Presiding
`
`Submitted January 16, 2025***
`San Francisco, California
`
`
`
`*
`Carolyn W. Colvin is substituted for her predecessor Martin O’Malley,
`Commissioner of the Social Security Administration, as Acting Commissioner of
`the Social Security Administration, pursuant to Federal Rule of Appellate
`Procedure 43(c).
`
`
`** 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).
`
`
`
`
`
`
`
`
`
`Before: H.A. THOMAS, MENDOZA, Circuit Judges, and BOLTON, District
`Judge.****
`
`
`
`Dirk Dunning appeals the district court’s judgment affirming the
`
`Commissioner of Social Security’s denial of his application for disability insurance
`
`benefits under the Social Security Act. On appeal, Dunning argues the ALJ
`
`improperly discredited (1) certain medical opinions, (2) his testimony, and (3) lay
`
`witness statements. We have jurisdiction under 28 U.S.C. § 1291. “We review a
`
`district court’s judgment de novo and set aside a denial of benefits only if it is not
`
`supported by substantial evidence or is based on legal error.” Smartt v. Kijakazi,
`
`53 F.4th 489, 494 (9th Cir. 2022) (internal quotation marks and citation omitted).
`
`Substantial evidence is “more than a mere scintilla. It means—and means only—
`
`such relevant evidence as a reasonable mind might accept as adequate to support a
`
`conclusion.” Biestek v. Berryhill, 587 U.S. 97, 103 (2019) (cleaned up). We
`
`affirm.
`
`1.
`
`To the extent that Dunning argues that the ALJ improperly discounted
`
`the medical opinions of Dr. Pedersen and Dr. Baer, he failed to raise these
`
`arguments before the district court and these arguments are therefore forfeited.
`
`Bastidas v. Chappell, 791 F.3d 1155, 1159 (9th Cir. 2015) (explaining that
`
`
`
`
`
`
`**** The Honorable Susan R. Bolton, United States District Judge for the
`District of Arizona, sitting by designation.
`
`
`
`2
`
`
`
`
`
`ordinarily “a party who does not complain of an issue in the district court forfeits
`
`his right to review of that issue on appeal”).
`
`Even if we considered these arguments, the ALJ provided specific reasons
`
`for discounting their testimony. The ALJ determines the persuasiveness of medical
`
`opinions. See 20 C.F.R. § 404.1520c(a). The most important factors when
`
`evaluating persuasiveness of medical opinions are supportability and consistency.
`
`Id. The ALJ found that part of Dr. Pedersen’s opinion was not persuasive because
`
`certain opinions, specifically those related to LED light sensitivity, were not
`
`supported by objective evidence and were inconsistent with other evidence in the
`
`record. The ALJ also found that Dr. Baer’s opinion was vague and therefore only
`
`somewhat persuasive. These determinations are supported by substantial evidence.
`
`Substantial evidence also supports the ALJ’s conclusion that Dr. Blattner’s
`
`medical opinion was mostly persuasive. The ALJ discounted Dr. Blattner’s
`
`testimony that Dunning could only stand for ten to fifteen minutes because this
`
`opinion was inconsistent with other evidence. For example, Dunning said he could
`
`walk for one to two miles at a time and occasionally volunteers at political
`
`gatherings where he stands and hold signs. In addition, the ALJ found that the
`
`opinion was not supported by objective medical evidence, as Dr. Blattner
`
`performed no actual testing and appeared to base his opinions solely on Dunning’s
`
`subjective complaints.
`
`
`
`3
`
`
`
`
`
`2.
`
`The ALJ provided specific reasons for discounting Dunning’s
`
`testimony. The ALJ considers “all of the available evidence” when “evaluating the
`
`intensity and persistence of [the alleged] symptoms,” including whether the “pain
`
`or other symptoms can reasonably be accepted as consistent with the medical signs
`
`and laboratory findings and other evidence.” 20 C.F.R. § 404.1529(a). Here, the
`
`ALJ discounted Dunning’s testimony regarding the extent of his pain and
`
`symptoms because he continues to engage in a wide range of daily activities, his
`
`uveitis episodes responded well to topical steroids, and he was not currently taking
`
`any medications.
`
`3.
`
`Lastly, the ALJ did not err by discounting the lay witness statements
`
`describing Dunning’s LED sensitivity. The ALJ concluded that the lay witness
`
`testimony was contradicted by other evidence—namely that Dunning continued to
`
`work from December 2016 to July 2017 and participated in many daily activities—
`
`and noted that the testimony “appear[ed] to be based on [Dunning’s] subjective
`
`complaints rather than on objective medical evidence.”
`
`AFFIRMED.
`
`
`
`4
`
`
`
`
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