Hunter v. Commissioner Social Security Administration

Filing 21

OPINION AND ORDER: The Commissioner's decision is AFFIRMED and this case is dismissed. Signed on 7/9/2018 by Judge Ann L. Aiken. (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION

MARGARET H., 1

Case No. 6: 17-cv-00840-AA
OPINION AND ORDER

Plaintiff,

v.
COMMISSIONER OF SOCIAL SECURITY, 2
Defendant.

AIKEN, Judge:
Plaintiff Margaret H. brings this action pursuant to the Social Security Act ("Act"), 42
U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of Social
Security ("Commissioner"). The Commissioner denied plaintiffs applications for Disability

1

In the interest of privacy, this opinion uses only the first name and the initial of the last
name of the non-governmental patty in this case.
2

Nancy A. Berryhill' s term as the Acting Commissioner of the Social Security
Administration ended on November 17, 2017, and a new Commissioner has not been appointed.
The official title of the head of the Social Security Administration is the "Commissioner of
Social Security." 42 U.S.C. § 902(a)(l). A "public officer who sues or is sued in an official
capacity may be designated by official title rather than by name[.]" Fed. R. Civ. P. 17(d). I
therefore refer to defendant only as Commissioner of Social Security.
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Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). For the reasons set f01ih
below, the Commissioner's decision is affitmed and this case is dismissed.
BACKGROUND

On January 15, 2013, plaintiff filed applications for DIB and SSI, alleging disability as of
January 1, 2004. Plaintiff was fifty-four years old on the alleged disability onset date. She
completed some college coursework and previously worked as a senior foster caregiver.
Plaintiffs impairments include post-traumatic stress disorder ("PTSD") and dysthymia. The
agency denied both the DIB and the SSI claims initially and again upon reconsideration. Plaintiff
requested a hearing and the ALJ subsequently denied plaintiffs claims for benefits on February
25, 2016. Plaintiff requested a review of the hearing decision, which the Appeals Council denied
on March 28, 2017. Plaintiff now seeks review of the ALJ's decision in this Court.
STANDARD OF REVIEW

The district court reviews the Commissioner's final decision under the substantial
evidence standard; the decision will be disturbed only if it is not supported by substantial
evidence or is based on legal error. See 42 U.S.C. § 405(g) ("[F]indings of the Commissioner of
Social Security as to any fact, if suppo1ied by substantial evidence, shall be conclusive[.]");
Smolen v. Chafer, 80 F.3d 1273, 1279 (9th Cir. 1996); Andrews v. Shala/a, 53 F.3d 1035, 1039
(9th Cir. 1995). "Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to supp01i a conclusion." Webb v. Earhart, 433 F.3d 683, 686 (9th Cir. 2005).
"Substantial evidence means more than a scintilla, but less than a preponderance." Smolen, 80
F.3d at 1279 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971) and Sorenson v.
Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975)) (internal quotation marks omitted). The
court must weigh "both the evidence that supports and the evidence that detracts from the ALJ' s

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conclusion." 1Vfayes v. 1Vfassanari, 276 F.3d 453, 459 (9th Cir. 2001). If the evidence is subject
to more than one interpretation but the Commissioner's decision is rational, the Commissioner
must be affomed, because "the court may not substitute its judgment for that of the
Commissioner." Edlundv. 1Vfassanari, 253 F.3d 1152, 1156 (9th Cir. 2001).
COMMISSIONER'S DECISION

The initial burden of proof rests upon plaintiff to establish disability. Howard v. Heckler,
782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, plaintiff must demonstrate an
"inability to engage in any substantial gainful activity by reason of any medically dete1minable
physical or mental impai1ment which can be expected ... to last for a continuous period of not
less than 12 months[.]" 42 U.S.C. § 423(d)(l)(A); see also id. § 1382c(a)(3)(A) (substantially
identical standard for SSI).
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(a)(4);

id. § 416.920(a)(4). At step one, the ALJ found that plaintiff had not engaged in substantial
gainful activity since the alleged disability onset date on January 1, 2004. At step two, the ALJ
found the following severe impahments: PTSD and dysthymia. However, the ALJ found that the
record failed to establish any severe, medically dete1minable impairment existing between
January 1, 2004, the alleged onset date, and June 30, 2009, the date last insured, as relevant to
plaintiffs DIB application. The ALJ therefore denied plaintiffs DIB claim at step two.
Proceeding with the analysis for plaintiffs SSI claim, at step three, the ALJ detem1ined
plaintiffs impai1ments, whether considered singly or in combination, did not meet or equal "one
of the listed impaim1ents" that the Commissioner acknowledges are so severe as to preclude

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substantial gainful activity. Tr. 19. The ALJ next assessed the a residual functional capacity
("RFC") and found that plaintiff is able to
[P]erform a full range of work at all exertional levels but with the following
nonexertional limitations: the claimant is limited to simple, routine tasks
consistent with unskilled work as defined by the Dictionary of Occupational
Titles. The claimant is limited to simple work-related decisions. The claimant is
limited to occasional interaction with supervisors, but frequent interaction with
coworkers and the public.
Tr. 21. At step four, the ALJ found that plaintiff has no past relevant work because she has not
earned at "substantial gainful activity" levels since 2001. Tr. 26. At step five, the ALJ found that
plaintiff retained the ability to perfotm the representative jobs of dietary aid, laundry worker II,
and garment so1ter. Therefore, the ALJ found that plaintiff had not been under a disability from
January 1, 2004, the alleged disability onset date, through February 25, 2016, the date of the
ALJ' s unfavorable decision.
DISCUSSION

On appeal, plaintiff contends that the ALJ etTed by (1) disposing of plaintiffs DIB claim
at step two of the sequential analysis, (2) failing to provide specific, clear, and convincing
reasons suppo1ted by substantial evidence to discredit plaintiffs subjective symptom testimony,
and (3) failing to adequately account for all of plaintiffs mental limitations in the formulation of
the RFC and hypotheticals posed to the vocational expett, resulting in an etTor at step five of the
sequential analysis.
I.

The ALJ erred at step two

Plaintiff first argues that the ALJ' s step two finding was not suppotted by substantial
evidence. A claimant is not disabled unless he or she has a severe impairment, or combination of
impairments, significantly limiting his or her physical or mental ability to do basic work
activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the ALJ finds no severe impairments at step
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two, the disability claim will be denied. If, however, the claimant has at least one severe
impairment, the ALJ then proceeds to step three. A claimant's impairment (or combination of
impairments) is not severe if it does not significantly limit his or her physical or mental ability to
do basic work activities (i.e., the abilities and aptitudes necessary to do most jobs). Id.

§§ 404.1521, 416.921. To satisfy his or her burden at step two, the claimant must prove the
severity of the physical or mental impairment by providing medical evidence consisting of signs,
symptoms, and laboratory findings; the claimant's statement of symptoms alone will not suffice.
Id

The step-two inquiry is a de minimis screening device used to dispose of groundless
claims. Bowen, 482 U.S. at 153-54. An impairment or combination of impairments can be found
"not severe" only if the medical evidence establishes a slight abnormality that has "no more than
a minimal effect on an individual's ability to work[.]" SSR 85-28, 1985 WL 56856, at *3 (1985);

see also Webb, 433 F.3d at 687 (citing SSR 85-28 with approval). 3 In addition to considering
whether each impahment is sufficiently severe, it is important for the ALJ to consider the
combined effect of all the claimant's impahments on his or her ability to function. Smolen, 80
F.3d at 1289-90.
The ALJ evaluates the intensity and persistence of a claimant's symptoms, considering
all of the available evidence, including medical histmy, the medical signs and laboratmy findings
and statements. 20 C.F.R. §§ 404.1529, 416.929. The ALJ then dete1mines the extent to which
the alleged functional limitations and restrictions due to pain or other symptoms can reasonably
be accepted as consistent with the medical signs, laboratory findings, and other evidence, and
decides how these symptoms affect the claimant's ability to work. Id. Once the claimant has
3

Social Security Rulings, though not binding on federal courts, are persuasive authority
because they establish the Social Security Administration's official interpretations of the statutes.
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produced medical evidence of an underlying impairment which is reasonably likely to be the
cause of the alleged symptom, medical findings are not required to supp01i the alleged severity
of that symptom. Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991).
In this case, the ALJ found that plaintiff had severe impahments at the time of her
application in in 2013, but that the record failed to establish that those medically determinable
impahments existed between January 1, 2004, alleged disability onset date, and June 30, 2009,
plaintiffs date last insured. Accordingly, the ALJ disposed of plaintiffs DIB claim at step two.
The date last insured is significant for DIB because eligibility and benefit calculation is based on
the claimant's prior work history, whereas SSI is strictly need-based. Compare 42 U.S.C.

§ 423(a)(l)(A) & (c) with 42 U.S.C. §§ 138la-83.
The ALJ' s step two decision rested on the fact that the record lacked a formal diagnosis
of PTSD or dysthymia before June 30, 2009, and contained limited treatment records relating to
plaintiffs psychological impairments during that period. Plaintiff justifies the deaiih ofpre-2009
medical documentation by noting that she lacked medical insurance and financial resources to
seek treatment during the relevant period. "Disability benefits may not be denied because of the
claimant's failure to obtain treatment [s]he cannot obtain for lack of funds." Gamble v. Chafer,
68 F.3d 319, 321 (9th Cir. 1995). Plaintiff argues that the ALJ failed to consider plaintiffs
financial barriers to treatment.
The Commissioner responds by pointing to the fact that plaintiff was covered under the
Oregon Health Plan until she let her policy lapse, after which time she was eligible for (and
obtained) treatment as a student at the two colleges she attended. 4 But the ALJ never mentioned
those facts or otherwise discussed plaintiffs financial barriers to treatment. As such, the
4

The record demonstrates that, while she was a student, plaintiff secured free or low-cost
care through Lane Community College and Po1iland State University.
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Commissioners arguments are post hoc justifications for ALJ' s failure to consider plaintiffs lack
of medical insurance. A court cannot affam the decision of an agency on a ground that the
agency did not invoke in making its decision. Pinto v. lvfassanari, 249 F.3d 840, 847 (9th Cir.
2001).
Additionally,

subsequent records establish the severe, medically deteiminable

impairments of PTSD and dysthymia. In proving that she had a qualifying impailment before her
date last insured, plaintiff is not limited to contemporaneous medical records. See Nguyen v.
Chafer, 100 F.3d 1462, 1465 (9th Cir. 1996) (holding that a doctor's opinion that a medical

condition existed prior to that doctor's examination of a claimant is competent evidence that an
ALJ must consider). Subsequent medical records can have particularly strong evidentiary value
for PTSD, for which "exposure to a traumatic or stressful event is listed explicitly as a diagnostic
criterion." Trauma and Stressor-Related Disorders, American Psychiatric Association Diagnostic
and Statistical Manual of Mental Disorders, Fifth Edition (2013). Here, plaintiffs medical
records make it clear that her PTSD is attributed to domestic abuse which took place while she
was in her 20s and 30s, well before her date last insured. There is no mention of any other
trauma that could have caused plaintiffs PTSD; as a result, the post-2009 diagnosis is strong
evidence that the PTSD diagnosis (and resulting limitations) existed prior to 2009. Therefore, the
ALJ e!Ted at step two of the sequential analysis for plaintiffs DIB claim.
II.

The ALJ provided clear and convincing reasons for rejecting plaintiff's testimony

Plaintiff next argues that the ALJ discounted her testimony about symptom severity
without providing legally sufficient justification. "The ALJ is responsible for dete1mining
credibility" and resolving conflicts in the evidence. Magallanes v. Bowen, 881 F.2d 747, 750

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(9th Cir. 1989). The ALJ's findings regarding a claimant's subjective complaints must be
supported by specific, cogent reasons. Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006).
"In evaluating the credibility of a claimant's testimony regarding subjective [symptoms],
an ALJ must engage in a two-step analysis." Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.
2009). "First, the ALJ must dete1mine whether the claimant has presented objective medical
evidence of an underlying impairment which could reasonably be expected to produce the pain
or other symptoms alleged." Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (internal
quotation marks omitted). "Once the claimant produces medical evidence of an underlying
impairment, the Commissioner may not discredit the claimant's testimony as to subjective
symptoms merely because they are unsupported by objective evidence." Beny v. Astrue, 622
F.3d 1228, 1234 (9th Cir. 2010). "Second, if the claimant meets this first test, and there is no
evidence of malingering, the ALJ can reject the claimant's testimony about the severity of her
symptoms only by offering specific, clear and convincing reasons for doing so." Lingenfelter,
504 F.3d at 1036 (internal quotation marks omitted). "General findings are insufficient; rather,
the ALJ must identify what testimony is not credible and what evidence unde1mines the
claimant's complaints." Berry, 622 F.3d at 1234. In deciding how much weight to assign to a
claimant's testimony, the ALJ may consider the claimant's reputation for truthfulness,
inconsistencies either in his or her testimony or between the testimony and his or her conduct,
daily activities, work record, and testimony from physicians and third parties concerning the
nature, severity and effect of the symptoms. Smolen, 80 F.3d at 1284.
Plaintiff's testified that her pain and fatigue worsened in June 2009, which prevented her
for continuing her work as a senior foster care aide. Plaintiff attempted to continue her studies,
but stated that she was unable to sustain full-time studies even without having to work. Plaintiff

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fmiher noted that she had trouble trying to stay conscious during her commute to school using
public transpo1iation. She described increased difficulty "as time progressed" along with
memory problems. Tr. 50. She was unable to complete her degree after running "out of financial
aid, and steam[,]" Tr. 50, and subsequently moved to California to be near her sister, noting
continued experiences of dizzy spells and "foggy brain[,]" Tr. 55.
Plaintiff returned to Oregon in 2012, where she made an unsuccessful work attempt as a
caregiver, stating that it was "exhausting and it just ended abruptly." Tr. 48. She reported
experiencing daily pain and flu-like symptoms. Plaintiff utilized marijuana at night because it
helped her sleep. She also stated that she is able to complete household chores, such as dishes
and laundry, provided that she has a break every fifteen to thirty minutes. Following her doctor's
recommendation to exercise, plaintiff did yard work, which involved pulling weeds and watering
plants. Lastly, plaintiff testified that she is able to grocery shop with her partner and visit her son
every week or two.
The ALJ discredited plaintiffs subjective symptom testimony for a number of reasons.
First, the ALJ found that plaintiffs statements were inconsistent with medical evidence. Plaintiff
stated that she was dizzy, confused, and had wording finding issues. Contrary to this testimony,
during a mental status examination, she was found fully oriented, she knew the date, and she had
an intact shmi-term memory, and spoke in excessive detail. That reason is both clear and
convincing. The ALJ is pe1mitted to consider inconsistencies between plaintiffs testimony and
the record, including medical evidence. Smolen, 80 F.3d at 1284.
Next, the ALJ found that the use of marijuana fmiher contributed to plaintiffs problems.
Specifically, the ALJ noted that plaintiff uses marijuana daily, but only when she is not in
treatment. While the justification here is clear, it is not convincing. There is no evidence in the

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record supporting the conclusion that plaintiffs use of marijuana contributed to the severity of
her symptoms or unde1mined the evidentiary value of her symptom testimony.
The ALJ next cited plaintiffs limited work history and concluded that her te1mination
was for reasons other than her impaitments. The ALJ also found that plaintiffs past ability to
work supports the conclusion that she should be able to work presently. Those reasons are
neither clear nor convincing. During a psychological evaluation, plaintiff reported that she was
"indirectly fired from the [adult foster care] position in that the woman for whom she cared set
up other services without communicating with her about it." Tr. 391. Thus, it remains unclear
why plaintiff was fired for her previous work as a caregiver, specifically whether the termination
was attributable to her impairments.
The ALJ also noted plaintiffs education hist01y, specifically that she dropped out of
college only after tunning out of financial aid and maintained a 3. 7 GPA leading up to that time.
That reasoning is both clear and convincing. Plaintiffs ability to manage three years of
schooling while maintaining an average GPA of 3. 7 is a strong indication that her conditions are
not as severe as alleged.
The ALJ then noted a possible secondary gain issue because plaintiff applied for benefits
three times, all resulting in denials. While prior benefits applications are a pe1missible
consideration in weighing a claimant's testimony, here the applications offer limited persuasive
value because the record fails to establish why plaintiff was denied in each of these applications
(i.e., whether they were denied on the merits).
The ALJ also concluded that plaintiffs testimony about her daily activities contradicted
plaintiffs other testimony. Plaintiff drives, shops for groceries, runs enands, watches her
grandson, prepares meals, works in the garden, and perfotms household chores, all on a weekly

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basis. The reasoning provided by the ALJ is both clear and convincing. The ALJ reasonably
found that the activities described above conflict with plaintiffs claim that she could be active
for no more than 15-30 minutes before pain and exhaustion forced her to rest. In addition, the
ALJ reasonably found a conflict between the described activities and plaintiffs testimony that
she was unable to work due to dizziness and confusion. If plaintiff struggles to work due to
dizziness and confusion, it is reasonable to conclude that she would be unable to regularly
perfotm activities involving driving, running etrnnds, watching children, preparing meals,
working a garden, and performing household chores, even if afforded regular breaks. The ALJ
may consider inconsistencies between claimant's testimony and her conduct or her daily
activities. Smolen, 80 F.3d at 1284.
The ALJ also noted that plaintiff, when filing information about her disabilities, checked
all available boxes when detailing the activities in which she is impaired. The ALJ found that
checking all those boxes reduced the credibility of plaintiffs allegations. This is both clear and
convincing; the ALJ reasonably viewed with skepticism plaintiffs contention that her
impaitments limit her in all areas.
Finally, the ALJ gave less weight to plaintiffs testimony because she sought treatment
only sporadically before filing for disability in 2013, at which point treatment became more
regular. Plaintiff justifies this by stating that she was unable to afford regular treatment due to
her limited financial resources. On appeal, the Commissioner argued that plaintiff rarely visited
health clinics despite being on the Oregon Health Plan and being eligible for care at two colleges
she attended. Additionally, plaintiff did not receive medical treatment when she was in
California and stated that she cannot remember if she even applied. For the reasons set out in
Section I, supra, these are post hoc rationalizations and cannot "serve as sufficient predicate for

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agency action." Am. Textile }vfji·s. Inst., Inc. v. Donovan, 452 U.S. 490, 537 (1981). Because the
ALJ did not consider plaintiffs access to medical treatment as a student when originally
evaluating the claim, plaintiffs sporadic treatment cannot be used to discredit plaintiffs
testimony. Therefore, this argument is clear but not convincing because the ALJ cannot discredit
a claimant for not obtaining treatment she cannot afford. Orn. v. Astrue, 495 F.3d 625, 638 (9th
Cir. 2007).
In sum, the ALJ's treatment of plaintiffs testimony rested on a mix of legally sufficient
and legally insufficient justification. An ALJ's overall credibility decision may be upheld even if
not all of the ALJ's reasons for rejecting a claimant's testimony are upheld. Batson v. Comm 'r of

Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004). "[T]he relevant inquiry in this context is
not whether the ALJ would have made a different decision absent any e1rnr, ... it is whether the
ALJ's decision remains legally valid, despite such eITor." Carmickle v. Comm 'r, Soc. Sec.

Admin., 533 F.3d 1155, 1162. The inconsistency between plaintiffs testimony and the medical
evidence, her education history and strong academic perfo1mance during the alleged period of
disability, her daily activities, and the way in which she completed her disability paperwork are
all clear, convincing reasons to justify the ALJ's decision to reject plaintiffs testimony.
Therefore, the ALJ did not improperly reject plaintiffs testimony.
III.

The RFC captures all ofplaintiff's limitations
The last issue on appeal is whether the ALJ' s step five conclusions were based on an

RFC assessment that incorporated all limitations evident in the record. Specifically, plaintiff
argues that the ALJ did not include sufficient limitations in the RFC to account for her moderate
difficulties with concentration, persistence, and pace.

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At the fifth step, the Commissioner has the burden to demonstrate that the claimant can
engage in some type of substantial gainful activity that exists in "significant numbers" in the
national economy. 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2). The ALJ will find the claimant
disabled if he or she dete1mines the claimant unable to adjust to any other work. 20 C.F.R.
§§ 404.l 520(g), 416.920(g). The ALJ may meet the burden at step five by using a vocational
expert to produce a hypothetical that is based on medical assumptions suppmied by substantial
evidence in the record and that reflects all the claimant's limitations. Robert v. Shalala, 66 F.3d
179, 184 (9th Cir. 1995). A hypothetical that fails to take into account all of a claimant's
limitations is defective. Valentine v. Comm 'r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir.
2009).
The ALJ found that plaintiff has moderate limitations in concentration, persistence, and
pace. The RFC does not contain any express reference to those limitations; however, it limited
plaintiff to simple, routine tasks and simple work-related decisions. Plaintiff argues that those
limitations fail to account for the ALJ's finding of moderate limitations in concentration,
persistence, and pace. As support, plaintiff cites Brink v. Comm 'r Soc. Sec. Admin., 343 F. App'x
211, 212 (9th Cir. 2009) (unpublished), in which the Ninth Circuit held that a limitation to
"simple, repetitive work" did not accommodate the ALJ' s finding of moderate limitations in
concentration, persistence, or pace. The Commissioner responds by citing Stubbs-Danielson v.
Astrue, 539 F.3d 1169, 1173-74 (9th Cir. 2008), in which the court held that a limitation to
simple, routine, repetitive work captured an opinion that the claimant was "moderately limited"
in concentration, persistence, and pace, even though the ALJ did not expressly incorporate those
limitations in the RFC. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173-74 (9th Cir. 2008).

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The ALJ in Stubbs-Danielson assessed an RFC limiting the plaintiff to "simple, routine,
repetitive sedentary work[.]" Id at 1173. One of the doctors in Stubbs-Danielson found that
plaintiff had "slow pace, both with thinking and her actions" and also found moderate limitations
in her ability "to perform at a consistent pace without an umeasonable number and length of rest
periods." Id. A second doctor found that plaintiff had "a slow pace, both in thinking [and]
actions" yet found that she "retained the ability to carry out simple tasks as evinced by her ability
to do housework, shopping, work on hobbies, cooking and reading." Id. The court held that the
plaintiffs limitations in concentration, persistence, or pace were adequately captured by the
limitations to simple, routine work because those findings are consistent with medical evidence.
Id. Stubbs-Danielson and Brink demonstrate that determining whether the RFC adequately

incorporates moderate limitations in concentration, persistence, and pace requires a fact-intensive
and case-specific inquiry.
Dr. Metheny, a psychodiagnostic evaluator, opined that plaintiff has below average
delayed recall and poor persistence with difficult tasks. Dr. Prescott, another evaluating doctor,
found that she is sensitive to nonnal work stress. The ALJ afforded considerable weight to the
results of the mental examination administered by both Dr. Metheny and Dr. Prescott. It is
reasonable to conclude that a below average delayed recall comports with limiting plaintiff to
simple, routine tasks and having poor persistence with difficult tasks aligns with a limitation to
simple work-related decisions. It is also reasonable to conclude that being sensitive to normal
work stress would be captured by limiting the plaintiff to simple tasks. Because the RFC
reasonably aligns with the medical evidence provided by Dr. Metheny and Dr. Prescott, it
comports with the ALJ' s finding plaintiff has moderate limitations in concentration, persistence,
and pace. Therefore, the ALJ did not err at step five of the sequential analysis.

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IV.

The ALJ's error at step two was harmless

"A decision of the ALJ will not be reversed for enors that are hatmless." Stout v.
Comm 'r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (quoting Burch v. Barnhart, 400

F.3d 676, 679 (9th Cir. 2005)). However, a reviewing court cannot consider an enor haimless
"unless it can confidently conclude that no reasonable ALJ ... could have reached a different
conclusion." Id at 1056. Therefore, legal errors are hatmless only if they are inconsequential to
the disability decision. Id. at 105 5.
Here, the ALJ conunitted two legal errors: he failed to find that plaintiff had severe
impaitments at step two in connection with her DIB application and he gave severally legally
insufficient reasons for giving less weight to plaintiffs testimony about her symptoms. As
explained in Section II, supra, the errors in evaluating plaintiffs symptom statements were
hatmless because the ALJ's treatment of plaintiffs symptom statements remains supported by
legally sufficient justification. And because the ALJ committed no reversible enor at steps three
to five of the SSI analysis, the step two error was also harmless. The ALJ completed the
sequential analysis with the SSI claim, demonstrating that he would have denied plaintiffs DIB
claim even in the absence of the enor at step two.
CONCLUSION

The Commissioner's decision is AFFIRMED and this case is dismissed.
IT IS SO ORDERED.
Dated this

9_--IJ:; of July 2018.
AnnAiken
United States District Judge

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