Walker v. Commissioner Social Security Administration

Filing 22

Opinion and Order: The Commissioner's decision is affirmed and this case is dismissed. Signed on 3/13/2017 by Magistrate Judge Jolie A. Russo. (plb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

Case No. 6:16-cv-00311-JR

JAY D. WALKER,
Plaintiff,

OPINION AND ORDER

v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.
RUSSO, Magistrate Judge:
Plaintiff Jay Walker brings this action for judicial review of the final decision of the
Commissioner of Social Security (“Commissioner”) denying his applications for Title XVI
Social Security Income (“SSI”) and Title II Disability Insurance Benefits (“DIB”) under the
Social Security Act (“Act”). All parties have consented to allow a Magistrate Judge enter final
orders and judgment in this case in accordance with Fed. R. Civ. P. 73 and 28 U.S.C. § 636(c).
For the reasons set forth below, the Commissioner’s decision is affirmed and this case is
dismissed.
Page 1 – OPINION AND ORDER

PROCEDURAL BACKGROUND
On February 27, 2012, plaintiff applied for DIB and SSI, alleging disability as of April 1,
2011. Tr. 193-202. His applications were denied initially and upon reconsideration. Tr. 129-36,
139-43. On September 18, 2014, a hearing was held before an Administrative Law Judge
(“ALJ”), wherein plaintiff was represented by counsel and testified, as did a vocational expert
(“VE”). Tr. 44-70. On November 14, 2014, the ALJ issued a decision finding plaintiff not
disabled within the meaning of the Act. Tr. 19-32. After the Appeals Council denied his request
for review, plaintiff filed a complaint in this Court. Tr. 1-5.
STATEMENT OF FACTS
Born on August 31, 1966, plaintiff was 44 years old on the alleged onset date and 48
years old at the time of the hearing. Tr. 50, 193. He graduated from high school and worked
previously as a commercial painter. Tr. 65-66, 215. Plaintiff alleges disability due to diabetes,
heart disease, high blood pressure, and hand pain. Tr. 50-52, 214.
STANDARD OF REVIEW
The court must affirm the Commissioner’s decision if it is based on proper legal
standards and the findings are supported by substantial evidence in the record. Hammock v.
Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is “more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations
omitted). The court must weigh “both the evidence that supports and detracts from the
[Commissioner’s] conclusions.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).

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Variable interpretations of the evidence are insignificant if the Commissioner’s interpretation is
rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
The initial burden of proof rests upon the claimant to establish disability. Howard v.
Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must
demonstrate an “inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected . . . to last for a continuous
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).
The Commissioner has established a five step sequential process for determining whether
a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520,
416.920. First, the Commissioner determines whether a claimant is engaged in “substantial
gainful activity.” Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 404.1520(b), 416.920(b). If so, the
claimant is not disabled.
At step two, the Commissioner evaluates whether the claimant has a “medically severe
impairment or combination of impairments.” Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§
404.1520(c), 416.920(c). If the claimant does not have a severe impairment, he is not disabled.
At step three, the Commissioner determines whether the claimant’s impairments, either
singly or in combination, meet or equal “one of a number of listed impairments that the
[Commissioner] acknowledges are so severe as to preclude substantial gainful activity.” Yuckert,
482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is presumptively
disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
At step four, the Commissioner resolves whether the claimant can still perform “past
relevant work.” 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant can work, he is not

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disabled; if he cannot perform past relevant work, the burden shifts to the Commissioner. At step
five, the Commissioner must establish that the claimant can perform other work existing in
significant numbers in the national or local economy. Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§
404.1520(g), 416.920(g). If the Commissioner meets this burden, the claimant is not disabled. 20
C.F.R. §§ 404.1566, 416.966.
THE ALJ’S FINDINGS
At step one of the five step sequential evaluation process outlined above, the ALJ found
plaintiff had not engaged in substantial gainful activity since the alleged onset date. Tr. 21. At
step two, the ALJ determined the following impairments were medically determinable and
severe: “coronary artery disease with a history of myocardial infarction; hypertension; obesity;
right shoulder capsulitis; and mild carpal tunnel syndrome.” Id. At step three, the ALJ found that
plaintiff’s impairments, either singly or in combination, did not meet or equal the requirements
of a listed impairment. Tr. 24.
Because he did not establish presumptive disability at step three, the ALJ continued to
evaluate how plaintiff’s impairments affected his ability to work. The ALJ resolved that plaintiff
had the residual functional capacity (“RFC”) to perform light work, except that:
[he] is further limited to no more than occasional climbing of ropes, ladders and
scaffolds. He is limited to no more than frequent reaching on the right, as well as
frequent bilateral handling, grasping, fingering and feeling. [He] would also need
to avoid concentrated exposure to fumes, dust, gases, poor ventilation, and other
noxious odors.
Tr. 25.
At step four, the ALJ determined plaintiff could not perform any past relevant work. Tr.
30. At step five, the ALJ concluded, based on the VE’s testimony, that there were a significant

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number of jobs in the national and local economy that plaintiff could perform despite his
impairments, such as bench worker, inspector of hand packaging, and quality control checker of
small product assembly. Tr. 31.
DISCUSSION
Plaintiff argues that the ALJ erred by: (1) discrediting his subjective symptom statements;
(2) rejecting depression-related chart notes from Mary Allison, M.D., and Sudeshna Banerjee,
M.D.; (3) failing to order a psychological evaluation; and (4) neglecting to account for all of his
limitations in the RFC and at step five.
I.

Plaintiff’s Testimony
Plaintiff asserts the ALJ wrongfully discredited his subjective symptom testimony

concerning the severity of his impairments. When a claimant has medically documented
impairments that could reasonably be expected to produce some degree of the symptoms
complained of, and the record contains no affirmative evidence of malingering, “the ALJ can
reject the claimant’s testimony about the severity of . . . symptoms only by offering specific,
clear and convincing reasons for doing so.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.
1996) (citation omitted). A general assertion that the claimant is not credible is insufficient; the
ALJ must “state which . . . testimony is not credible and what evidence suggests the complaints
are not credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered
must be “sufficiently specific to permit the reviewing court to conclude that the ALJ did not
arbitrarily discredit the claimant’s testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir.
1995) (internal citation omitted). If the “ALJ’s credibility finding is supported by substantial

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evidence in the record, [the court] may not engage in second-guessing.” Thomas v. Barnhart, 278
F.3d 947, 959 (9th Cir. 2002) (citation omitted).
At the September 2014 hearing, plaintiff testified that, beginning in April 2011, his
breathing problems and diabetes, which also caused depression, rendered him unable to work.
Tr. 50-51. Specifically, plaintiff “would shut down for days at a time [and] couldn’t do nothing.”
Tr. 51. Plaintiff also endorsed generalized pain in his hands, legs, and feet, as well as intermittent
heart pains following his January 2012 heart attack. Tr. 50, 52. As a result of these impairments,
plaintiff stated that he cannot “walk that far” or use his hands, even to open a can with a can
opener, because they are “crippled.” Tr. 52, 57, 59. Plaintiff indicated that he had quit smoking
cigarettes “[a]bout a month ago” and quit using methamphetamine “[a]bout a year ago.” Tr. 53.
In addition, plaintiff remarked that, after a long bout of non-compliance, he was currently taking
his prescription medications for hypertension and diabetes, which he described as “pretty good”
in terms of effectiveness. Tr. 52-54. Regarding mental health treatment, plaintiff testified that his
“doctor gave [him] some depression medication once and [he] took it for a while but . . . quit
taking it” because it “made [him] feel bad.” Tr. 61. Plaintiff did not thereafter “talk to the doctor
about trying a different [anti-depressant] medication” and he could not identify any reason why
he had not sought psychological counseling. Id. When asked to describe his activities, plaintiff
reported preparing meals a couple times per day, performing light cleaning, watching television,
and leaving the house to go to the grocery store or medical appointments two- to three-times per
week. Tr. 55-56.
After summarizing his hearing testimony, the ALJ determined that plaintiff’s medically
determinable impairments could reasonably be expected to produce some degree of symptoms,

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but his statements regarding the extent of these symptoms were not fully credible due to his
medical non-compliance and activities of daily living, as well as the lack of corroborating
medical evidence.1 Tr. 25-30.
Notably, the ALJ found that plaintiff’s “credibility regarding the severity of his
impairments is diminished by a lack of compliance with prescribed medications and adhering to
prescribed treatment for most of the period.” Tr. 26. An ALJ may rely on an “unexplained or
inadequately explained failure to seek treatment or to follow a prescribed course of treatment” in
affording less weight to a claimant’s testimony. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th
Cir. 2008) (citation and internal quotations omitted). As the ALJ noted, “[t]here are numerous
reports throughout the record that [plaintiff] was not taking his medications and did not attend
medical appointments.” Tr. 26; see also Tr. 332-33, 335, 365, 406-08, 414, 419-20, 423-24, 437,
470, 485, 522, 526-27 (plaintiff’s providers noting his failure to attend follow-up appointments
and/or non-compliance with prescribed medications). For instance, plaintiff was discharged from
a cardiac rehabilitation program following his heart attack because he “did not show for
subsequent appointments.” Tr. 335. Despite alleging that his lower extremities are painful to the
point of being “crippled,” plaintiff did not seek any treatment for his hands or wrists outside of
obtaining an initial assessment in November 2011. Tr. 451, 572-74. Several providers counseled
plaintiff, on numerous occasions, about lifestyle changes (e.g., smoking cessation, increasing
activity levels, etc.) that he neglected to implement. See, e.g., Tr. 332-33, 343-44, 365, 406-08,
414, 419-20, 423-24, 430, 470, 509.
1

The Court notes that, pursuant to SSR 16-3p, the ALJ is no longer tasked with making an
overarching credibility determination and instead assesses whether the claimant’s subjective
symptom statements are consistent with the record as a whole. See SSR 16-39, available at 2016
WL 1119029 (superseding SSR 96-7p). Although the ALJ’s decision was issued more than one
year before SSR 16-3p became effective, it is nonetheless compatible therewith.
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Moreover, while plaintiff testified that he cannot work due to depression, he did not seek
any mental health treatment outside of procuring an anti-depressant in December 2012, which he
subsequently stopped taking.2 Indeed, plaintiff concedes that he “has not obtained counseling or
tried any other medications” to address his allegedly disabling mental impairment. Pl.’s Opening
Br. 13. Plaintiff nonetheless asserts that “[t]here is evidence in this case that depression itself has
interfered with [his] ability to obtain treatment for his various conditions.” Id. Aside from the
fact that plaintiff does not follow this contention with any citation, the record before the Court
evinces plaintiff obtained care, even for his mental impairment, when he wanted or believed he
needed it. See Tr. 353 (plaintiff seeking medical treatment in November 2012 after his shopping
cart was hit by a car in a parking lot), 365 (plaintiff seeking medical treatment in January 2013
for an abscess caused by injecting methamphetamine), 432 (plaintiff seeking medical treatment
in October 2011 after stepping on a nail), 438-40 (plaintiff seeking medical treatment in
December 2012 for depression). Significantly, plaintiff’s own testimony at the hearing did not
suggest that his depression imposed any barrier to seeking treatment. See Tr. 56, 61 (plaintiff
acknowledging that he left the house multiple times per week to attend medical appointments
and did not seek mental health treatment after December 2012, including for medication
management, because he did not perceive it as desirable or necessary).
Further, as discussed in Section II, the providers who observed plaintiff to be depressed –
i.e., Drs. Allison and Banerjee – were neither mental health specialists nor aware of plaintiff’s
drug use. See Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995) (examining psychologist’s
“conclusions regarding depression . . . were unreliable because of [the claimant’s]
2

Although plaintiff testified that he “didn’t like the feel of” this anti-depressant medication, he
did not contemporaneously disclose any side-effects to his providers. Tr. 61.

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contemporaneous substance abuse”). To the extent they exist within the record, plaintiff’s
psychological findings (which both pre- and post-date Dr. Allison’s treatment of plaintiff) were
all normal. See, e.g., Tr. 279, 338, 406, 476, 484, 486, 551. Finally, as defendant observes,
plaintiff’s medical non-compliance was both “global” and “noted before he was diagnosed with
depression in December 2012.” Def.’s Resp. Br. 8 (citing Tr. 332-33, 341, 438, 443, 483, 48586).
Accordingly, plaintiff’s contention regarding depression is not born out by the record.
See Molina v. Astrue, 674 F.3d 1104, 1113-14 (9th Cir. 2014) (affirming the ALJ’s credibility
finding where “there was no medical evidence that [the claimant’s] resistance [to treatment] was
attributable to her mental impairment rather than her own personal preference”). Given these
circumstances, the Court finds that the ALJ reasonably concluded plaintiff’s failure to seek
treatment and follow his doctor’s recommendations undermined his subjective symptom
testimony concerning the extent of his impairments.
The ALJ also found that plaintiff’s testimony was contradicted by the medical record,
which revealed that his physical impairments were not as significant as alleged. Tr. 27-28.
Central to this determination was the fact that plaintiff’s examination findings were largely
unremarkable and his treatment consisted almost exclusively of various medication regimes,
which provided periods of good control when properly implemented. “[E]vidence of
conservative treatment is sufficient to discount a claimant’s testimony regarding severity of an
impairment.” Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007), cert. denied, 552 U.S. 1141
(2008) (citations and internal quotations omitted); see also Lingenfelter v. Astrue, 504 F.3d
1028, 1040 (9th Cir. 2007) (“whether the alleged symptoms are consistent with the medical

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evidence” is a relevant consideration in evaluating the claimant’s credibility) (citations omitted).
The ALJ is correct; outside of prescription medications and joint injections in his shoulder,
plaintiff declined other modalities of treatment. See, e.g., Tr. 406, 495, 497, 505-13. When he
was compliant with his doctor’s orders, he reported an amelioration of symptoms. See Tr. 53-54
(plaintiff testifying at the hearing that his hypertension and diabetes medications were effective),
337 (plaintiff reporting in February 2012 that he “is compliant with his medications” and
“[d]enies any limitations”); see also Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006
(9th Cir. 2006) (“[i]mpairments that can be controlled effectively with medication are not
disabling”).
Thus, the ALJ provided clear and convincing reasons, supported by substantial evidence,
for rejecting plaintiff’s subjective symptom statements. As such, this Court need not discuss all
of the reasons provided by the ALJ because at least one legally sufficient reason exists.
Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008). The ALJ’s
evaluation of plaintiff’s testimony is affirmed.
II.

Step Two Finding
Plaintiff contends the ALJ erred by failing to include depression as a severe impairment.3

At step two, the ALJ determines whether the claimant has an impairment, or combination of
3

Plaintiff does not characterize this argument as a step two challenge, asserting instead that
“[t]he ALJ erred in failing to credit the opinions of [his] treating doctors regarding his
depression.” Pl.’s Opening Br. 11-12. Yet, as discussed herein, Drs. Allison and Banerjee did not
formally evaluate plaintiff for depression, in part due to the fact that neither doctor is a mental
health specialist. Tr. 342-45, 418-30, 522-31. In other words, Dr. Allison’s and Dr. Banerjee’s
observations of plaintiff’s emotional state do not qualify as opinion evidence within the purview
of the Act. See 20 C.F.R. §§ 404.1527(a)(2),416.927(a)(2) (“[m]edical opinions are statements
from . . . acceptable medical sources that reflect judgments about the nature and severity of your
impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite
impairment(s), and your physical or mental restrictions”). Even assuming the chart notes of Drs.
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impairments, that is both medically determinable and severe. 20 C.F.R. §§ 404.1520(c),
416.920(c). An impairment is severe if it “significantly limit[s]” the claimant’s ability to do basic
work activities, which are defined as “abilities and aptitudes necessary to do most jobs.” 20
C.F.R. §§ 404.1521, 416.921; Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). An
impairment is medically determinable if it is diagnosed by an acceptable medical source and
based upon acceptable medical evidence; “under no circumstances may the existence of an
impairment be established on the basis of symptoms alone.” SSR 96-4p, available at 1996 WL
374187; 20 C.F.R. §§ 404.1513(a), 416.913(a). The step two threshold is low; the Ninth Circuit
describes it as a “de minimus screening device to dispose of groundless claims.” Smolen, 80 F.3d
at 1290 (citation omitted).
The record contains few references to plaintiff’s mental impairment. On December 5,
2012, nearly two years after the alleged onset date, plaintiff first complained of depression due to
his living situation and a conflict with his mother. Tr. 439-40. Although no formal mental health
evaluation was undertaken at that time, plaintiff was prescribed an anti-depressant and instructed
to return in one week. Id. On December 12, 2012, plaintiff reported “feel[ing] much better,” in
part because he had “talked [to] his mother.” Tr. 438. The clinician independently observed that
plaintiff had a “[b]righter affect [and was] smiling.” Id. As specified in Section I, plaintiff

Allison and Banerjee qualify as opinion evidence, it is well-established that an ALJ may
disregard a medical report that does “not show how [a claimant’s] symptoms translate into
specific functional deficits which preclude work activity.” Morgan v. Comm’r of Soc. Sec.
Admin., 169 F.3d 595, 601 (9th Cir. 1999); see also Johnson v. Shalala, 60 F.3d 1428, 1432 (9th
Cir. 1995) (ALJ need not credit a medical opinion that includes “no specific assessment of [the
claimant’s] functional capacity”); Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (ALJ
properly rejected a medical opinion that failed to explain the extent or significance of a
condition).
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thereafter stopped taking his anti-depressant and did not seek any further psychological
treatment.
On December 17, 2012, plaintiff presented to Dr. Allison, an endocrinologist, who
admonished plaintiff for “miss[ing] multiple follow-up visits,” and for having stopped most of
his medications and checking his blood sugars at home. Tr. 423-24. Plaintiff responded by
explaining that he had recently gone “through a long bout of depression.” Tr. 423.
On January 1, 2013, plaintiff was admitted to the hospital due to complications caused by
his “chronic” and “concurrent use of methamphetamine.” Tr. 365-85.
On January 11, 2013, plaintiff was again admitted to the hospital due to shortness of
breath. Tr. 405. Upon his discharge the following day, Dr. Banerjee, a cardiologist, noted
plaintiff’s significant medical non-compliance and “[q]uestionable depression.” Tr. 408.
On January 17, 2013, plaintiff followed-up with Dr. Allison. Tr. 419. While plaintiff had
restarted his medications and ceased smoking, he was not monitoring his blood sugars and had
“not made any significant changes to his diet or his exercise.” Tr. 419-20. Dr. Allison observed
that plaintiff had “multiple problems including significant depression, which is affecting his
compliance with his medications and overall health”; however, she did not formally evaluate
plaintiff for depression, record any clinical signs or symptoms, or refer plaintiff to mental health
treatment. Tr. 419-21. The doctor also failed to acknowledge or otherwise account for plaintiff’s
significant drug use. Id.
There are no other chart notes in the record from Dr. Allison and plaintiff thereafter did
not seek treatment from Dr. Banerjee for more than one year. In March 2014, plaintiff reinitiated
care with Dr. Banerjee but did not express any feelings of depression, despite only “tak[ing] his

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medications ‘on-and-off.’” Tr. 527-29. At his next appointment with Dr. Banerjee in July 2014,
plaintiff explained that “his mom fell and broke her hip and he has been attending to her in the
hospital and rehabilitation center,” which made him “very depressed.” Tr. 522. In the clinical
impression section, Dr. Banerjee remarked that plaintiff “appear[ed] quite depressed,” but, like
Dr. Allison, he did not perform a diagnostic assessment or otherwise note any clinical signs. Tr.
522-24.
At step two, the ALJ resolved that plaintiff’s depressive disorder was medically
determinable but not severe. Tr. 23-24. In making this finding, the ALJ accurately summarized
the aforementioned evidence, expressly denoting that Dr. Allison “made no objective mental
status findings consistent with depression and simply described [plaintiff] as ‘very pleasant,’”
and “did not know about his substance abuse.” Tr. 23. The ALJ also considered the report of
state agency consulting source Bill Hennings, Ph.D. Tr. 23-24. Dr. Hennings reviewed the record
in April 2013 and discussed Dr. Allison’s chart notes, including that she did “not list any signs or
symptoms” of depression and was unaware of plaintiff’s methamphetamine use. Tr. 121-23. As
the ALJ acknowledged at step two, Dr. Hennings opined that plaintiff was no more than mildly
limited in his activities of daily living, social functioning, and concentration, persistence, or pace,
with no episodes of decompensation. Tr. 24, 123.
Initially, “[a]ny alleged error at step two was harmless because step two was decided in
[plaintiff’s] favor with regard to other ailments.” Mondragon v. Astrue, 364 Fed. Appx. 346, 348
(9th Cir. 2010); Tr. 21. Regardless, in formulating plaintiff’s RFC, the ALJ “considered all
symptoms and the extent to which these symptoms can reasonably be accepted as consistent with
the objective medical evidence and other evidence,” and cited to the pertinent regulations. Tr. 25.

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This analysis entailed evaluation of the relevant and probative medical evidence, as well as
testimony from plaintiff and his mother. Tr. 26-30.
As addressed in Section I, the ALJ properly found plaintiff’s subjective symptom
statements to be not fully credible. Underlying this finding is the ALJ’s implicit determination
that plaintiff’s broad medical non-compliance was related to personal preference – including the
choice to use methamphetamine – as opposed to any latent psychological impairment. See, e.g.,
Tr. 22-23, 29-30. Concerning the medical evidence, the ALJ afforded “significant weight” to Dr.
Hennings’ opinion that plaintiff “had only mild limitations in functioning and no severe mental
impairment” because “it was based on a review of all of [plaintiff’s] medical records available at
the time for a comprehensive opinion of functioning” and “consistent with the overall evidence.”
Tr. 29. Although the ALJ did not explicitly discuss Dr. Banerjee’s July 2014 observation of
depression, he did note that “[e]vidence subsequent to [Dr. Hennings’] review is not persuasive
[because there] are no significant findings upon mental status exam.” Tr. 29.
The Court finds the ALJ reasonably concluded that, in light of the record as a whole,
plaintiff’s depression was mild and therefore did not significantly limit his ability to do basic
work activities. Tr. 22-23, 29; see also 20 C.F.R. §§ 404.1520a(d)(1), 416.920a(d)(1) (“[i]f we
rate the degree of your limitation in the [areas of activities of daily living, social functioning, and
concentration, persistence, or pace] as “none” or “mild” . . . we will generally conclude that your
impairment(s) is not severe”); see also Hoopai v. Astrue, 499 F.3d 1071, 1076-87 (9th Cir. 2007)
(mild mental impairments need not be accounted for in the claimant’s RFC). Nevertheless,
because the ALJ’s sequential evaluation, including the RFC assessment, adequately considered

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the effects of all of plaintiff’s alleged symptoms, any purported error at step two was harmless.
Burch, 400 F.3d at 682-83. The ALJ’s decision is affirmed as to this issue.
III.

Duty to Develop the Record
Plaintiff argues the ALJ should have “order[ed] a psychological evaluation” because his

attorney requested one “[m]ore than a year prior to the hearing.” Pl.’s Opening Br. 14. The
claimant bears the burden of proving the existence or extent of an impairment, such that the
ALJ’s limited “duty to develop the record further is triggered only when there is ambiguous
evidence or when the record is inadequate to allow for proper evaluation of the evidence.” Mayes
v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) (citation omitted).
Here, neither the ALJ nor any medical source found the record to be ambiguous or
inadequate for evaluation. Rather, as addressed in Sections I and II, plaintiff simply neglected to
introduce any medical evidence regarding his mental functioning due, in large part, to his failure
to seek treatment. See 20 C.F.R. §§ 404.1512(c), 416.912(c) (claimant bears the burden of
producing medical evidence concerning the severity of the alleged impairments).
To the extent plaintiff points to his indigence, the record before the Court reveals that he
was insured during the relevant time period. Tr. 58. In any event, there is no indication that
plaintiff looked into no- or low-cost mental health counseling options. Furthermore, despite
having the opportunity to do so, plaintiff’s counsel did not solicit specific testimony regarding
plaintiff’s mental impairment or any functional limitations associated therewith, or reiterate his
request for a consultative examination, at the hearing. Tr. 44-70.
Likewise, to the extent plaintiff speculates regarding the existence of undiagnosed
“cognitive or intellectual limitations” based on one provider’s comment that “[h]e does not

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understand surgery,” the record before the Court demonstrates plaintiff graduated from high
school pursuant to a regular curriculum. Tr. 215. Additionally, many of plaintiff’s other
providers noted that he adequately understood their instructions and was socially appropriate.
See, e.g., Tr. 279, 284, 353; see also Tr. 380 (plaintiff “demonstrates normal behavior [and] the
ability and willingness to learn”). As such, this isolated, and somewhat vague, reference does not
support the need for a consultative examination, especially in light of plaintiff’s coterminous
drug use. In sum, the ALJ’s duty to more fully develop the record was not triggered.
IV.

RFC and Step Five Finding
Plaintiff contends the ALJ’s RFC and step five finding are erroneous because they do not

adequately account for the limitations described in his testimony or the reports of Drs. Allison
and Banerjee. The RFC is the most a claimant can do despite his limitations. 20 C.F.R. §§
404.1545, 416.945. In determining the RFC, the ALJ must consider limitations imposed by all of
a claimant’s impairments, even those that are not severe, and evaluate “all of the relevant
medical and other evidence,” including the claimant’s testimony. SSR 96-8p, available at 1996
WL 374184. Only limitations supported by substantial evidence must be incorporated into the
RFC and, by extension, the dispositive hypothetical question posed to the VE. Osenbrock v.
Apfel, 240 F.3d 1157, 1163-65 (9th Cir. 2001).
As discussed herein, the ALJ appropriately weighed the evidence from plaintiff, Dr.
Allison, and Dr. Banerjee. Accordingly, plaintiff’s argument, which is contingent upon a finding
of harmful error in regard to the aforementioned issues, is without merit. Bayliss v. Barnhart, 427
F.3d 1211, 1217-18 (9th Cir. 2005). The ALJ’s RFC and step five finding are upheld.

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CONCLUSION
For the reasons stated above, the Commissioner’s decision is AFFIRMED and this case is
DISMISSED.
IT IS SO ORDERED.
DATED this 24th day of March 2017.

s/Jolie A. Russo
JOLIE A. RUSSO
United States Magistrate Judge

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