FILED
NOT FOR PUBLICATION
DEC 16 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUCY A. STEPHENS, No. 15-15253
Plaintiff-Appellant, D.C. No.
2:13-cv-00096-JAD-PAL
v.
CAROLYN W. COLVIN, Commissioner MEMORANDUM*
of Social Security Administration,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Submitted December 13, 2016**
San Francisco, California
Before: O’SCANNLAIN, GOULD, and M. SMITH, Circuit Judges.
Lucy Stephens appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of her applications for social security
disability insurance benefits and supplemental security income. Stephens argues
*
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).
that: (1) the administrative law judge (ALJ) erred by not evaluating all of her
severe impairments at step two and not incorporating nonexertional limitations in
her residual functional capacity (RFC) at step four; (2) the ALJ improperly
evaluated medical opinion evidence; (3) the ALJ improperly discounted the
credibility of her testimony; (4) the magistrate judge and the Commissioner
impermissibly engaged in post hoc rationalization; and (5) we should remand for
payment of benefits.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Reviewing the district
court’s decision de novo and the determination of the ALJ for substantial evidence,
Garrison v. Colvin, 759 F.3d 995, 1009–10 (9th Cir. 2014), we affirm.
1. Assuming the ALJ erred at step two by not addressing whether
Stephens’s chronic pain syndrome was a severe impairment, the error was
harmless. The ALJ considered the associated limitations in the RFC assessment at
step four. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). The ALJ’s RFC
assessment reflects that he considered any limitations posed by chronic pain
syndrome, and the record does not show evidence of functional limitations that the
ALJ did not consider. The ALJ did not err in failing to include Stephens’s fatigue
as a severe impairment because it was not supported by the medical record. See 20
C.F.R. § 416.908; Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005).
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2. The ALJ gave specific and legitimate reasons that are supported by
substantial evidence for the weight he accorded to medical opinions from
Stephens’s treating, examining, and non-examining physicians. See Van Nguyen v.
Chater, 100 F.3d 1462, 1466 (9th Cir. 1996). The ALJ sufficiently explained why
he gave substantial weight to Dr. Dhaliwal’s assessment, which was based on Dr.
Sherman’s examination and Stephens’s cumulative medical records, but discounted
Dr. Elkanich’s opinion regarding Stephens’s pre-surgery limitations and Dr. Witt’s
opinion that did not set forth specific work-related functional limitations. None of
Stephens’s treating physicians gave an opinion on the ultimate issue of disability,
and no physician opined that she was wholly precluded from working.
3. The ALJ did not err in finding Stephens less than credible as to the
intensity, persistence, and limiting effects of her symptoms to the extent that her
testimony was inconsistent with the ALJ’s RFC assessment. The ALJ provided
“specific, clear, and convincing reasons” in finding Stephens’s testimony not fully
credible. Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014). The ALJ found
Stephens’s symptom testimony inconsistent with medical records showing mild
findings, her reported improvement after a cervical spine surgery, the opinion that
Stephens’s pain was well controlled by medication, and the opinion of a medical
examiner. See Parra v. Astrue, 481 F.3d 742, 750–51 (9th Cir. 2007).
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4. Stephens’s other arguments, that the magistrate judge and the
Commissioner engaged in post hoc rationalization and that she is entitled to
remand for payment of benefits, are without merit.
We conclude that the ALJ’s findings are supported by substantial evidence
in the record, and any errors are harmless.
AFFIRMED.
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