FILED
NOT FOR PUBLICATION FEB 04 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
VICTOR H. MONDRAGON, No. 09-35408
Plaintiff - Appellant, D.C. No. 3:08-cv-00134-MA
v.
MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
Social Security Administration,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Malcolm F. Marsh, District Judge, Presiding
Submitted February 2, 2010 **
Seattle, Washington
Before: RYMER, GOULD and BYBEE, Circuit Judges.
Victor Mondragon appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of his application for Social Security
*
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).
Disability Insurance and Supplemental Security Income under Titles II and XVI of
the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291. We affirm.
Mondragon argues that the Administrative Law Judge (“ALJ”) erred at step
two by finding that he was not severely impaired by depression and chronic pain
disorder.1 Any alleged error at step two was harmless because step two was
decided in Mondragon’s favor with regard to other ailments. See Burch v.
Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). Mondragon argues that this became
prejudicial error at step four because the ALJ did not consider Mondragon’s
depression or chronic pain in determining his residual functional capacity (“RFC”).
We disagree. The ALJ specifically stated that he was considering “all symptoms
and the extent to which these symptoms can reasonably be accepted as consistent
with the objective medical evidence and other evidence.” The ALJ found that
Mondragon’s “mental conditions are medically indeterminable or non-severe”
based on Dr. Lyon’s finding that Mondragon was malingering, various reports that
Mondragon exaggerated his symptoms to his doctors, and Dr. Smith’s opinion that
Mondragon did not have a major psychiatric condition that would prevent him
from returning to work.
1
The parties are familiar with the factual and procedural history of this
case and we do not recount it in detail here.
2
The ALJ’s RFC determination is supported by substantial evidence. An
RFC is inherently an assessment of a claimant’s limitations resulting from his
medically determinable impairments, and Mondragon did not have any medically
determinable impairment that would limit his ability to sustain work activity on a
regular and continuing basis. Thus, any failure on the part of the ALJ to
specifically discuss Mondragon’s ability to sustain this kind of work activity was at
most harmless error. Cf. Reddick v. Chater, 157 F.3d 715, 724–25 (9th Cir. 1998)
(holding ALJ must consider ability to sustain regular work activity where claimant
was impaired by Chronic Fatigue Syndrome). Mondragon was responsible for
providing the evidence used to make the RFC determination, 20 C.F.R. §§
404.1545(a)(3), 416.945(a)(3), and the ALJ was not required to credit
Mondragon’s subjective complaints on this issue without objective evidence to
support his claims, see Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989).
The ALJ also properly assessed Mondragon’s reaching limitations and adopted the
opinion of Dr. Johnson that Mondragon was limited to no overhead reaching with
his right upper extremity. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir.
2005).
The ALJ gave specific and legitimate reasons, supported by substantial
evidence in the record, for rejecting the contradicted opinion of Dr. Czarnecki, on
3
which there was competing medical evidence. See Lester v. Chater, 81 F.3d 821,
830 (9th Cir. 1995). The ALJ found Dr. Czarnecki’s opinion was inconsistent with
most of the medical evidence, including a 2003 physical capacity evaluation, a
2004 residual functional capacity assessment, and two nerve conduction studies.
See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004)
(holding inconsistency with medical evidence a specific and legitimate reason for
rejecting treating physician’s opinion). Any alleged over-reliance by the ALJ on
the infrequency of Mondragon’s visits to Dr. Czarnecki was at most harmless error.
See Stout v. Comm’r, 454 F.3d 1050, 1055 (9th Cir. 2006).
The ALJ’s findings regarding Mondragon’s allegations of depression and
chronic pain disorder are supported by substantial evidence. The ALJ discussed
the relevant medical evidence related to these alleged impairments and determined
that any depression or chronic pain disorder did not impose functional limitations
in excess of Mondragon’s physical impairments. To the extent the ALJ did not
discuss specific statements made by Dr. Wicher, Dr. Miller, and Dr. Czarnecki, the
ALJ was not required to discuss those statements when their substance was
adequately represented by the evidence the ALJ did discuss. See Vincent v.
Heckler, 739 F.2d 1393, 1394–95 (9th Cir. 1984) (per curiam) (holding that
evidence that is not significant or probative need not be explicitly discussed by the
4
ALJ). Nor does the new evidence in the form of Dr. Rosenbaum’s diagnoses of
functional overlay and somatoform disorder—which were made after the hearing
before the ALJ—change our analysis. Dr. Rosenbaum’s opinion is entirely
consistent with the medical evidence that was in the record before the ALJ.
Mondragon has therefore not demonstrated a “reasonable possibility” that the
outcome of his hearing would have been different had Dr. Rosenbaum’s opinion
been added to the mix. Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001).
The ALJ also properly considered and credited the lay testimony of
Mondragon’s wife. The ALJ amply discussed the two third-party reports she
submitted. The ALJ was not required to discuss every statement made by
Mondragon’s wife to demonstrate that her observations had been properly
considered and credited. See Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006,
1012 (9th Cir. 2003) (holding that an ALJ need not discuss “every piece of
evidence” in order to demonstrate that the ALJ did not “selectively analyze” the
evidence).
Finally, the ALJ’s finding that Mondragon could perform his past relevant
work is supported by substantial evidence and is free from legal error. The ALJ’s
hypothetical to the vocational expert correctly contained all limitations that the
ALJ found were supported by substantial evidence. See Magallanes, 881 F.2d at
5
756–57. In determining that Mondragon could perform his past relevant work, the
ALJ assessed Mondragon’s RFC, found that Mondragon’s past relevant work as a
cannery worker is “rated at the light exertional level and is unskilled,” and found
that Mondragon could perform that job with his current RFC. Those findings
satisfy the requirements of Social Security Ruling (“SSR”) 82-62. See Pinto v.
Massanari, 249 F.3d 840, 845 (9th Cir. 2001) (citing SSR 82-62 and holding that
the ALJ must find claimant’s RFC, the physical and mental demands of his or her
past relevant work, and the relation of his or her RFC to the past work). The ALJ
correctly considered the Dictionary of Occupational Titles (“DOT”) definition of
“cannery worker” and the testimony of the vocational expert and found no conflict
between them.2 See id. at 845–46 (observing that “the best source for how a job is
generally performed” is usually the DOT, and that vocational expert testimony can
also be considered in the step four analysis).
AFFIRMED.
2
Mondragon argues that the DOT definition of cannery worker states that
the job requires reaching “2/3” of the time, but this is actually part of a database
category for the Guide for Occupational Exploration, and is not part of the DOT
occupational definition. See DOT Appendix C, available at
http://www.oalj.dol.gov/PUBLIC/DOT/REFERENCES/DOTAPPC.HTM.
6