FILED
NOT FOR PUBLICATION
NOV 16 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH P. CASTRO, No . 16-15644
Plaintiff -Appellant,
D.C. No. 1:14-cv-01434-JLT
v.
NANCY A. BERRYHILL, Acting MEMORANDUM*
Commissioner of Social Security,
Defendant-Appellee
Appeal from the United States District Court
for the Eastern District of California
Jennifer L. Thurston, Magistrate Judge, Presiding
Submitted November 14, 2017**
San Francisco, California
Before: CLIFTON and FRIEDLAND, Circuit Judges, and SESSIONS ***, District
Judge.
*
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).
***
The Honorable William K. Sessions III, District Judge for the U.S. District Court
for the District of Vermont, sitting by designation.
Joseph Castro is seeking disability insurance benefits and supplemental
social security income on the basis of chronic back pain, a heart condition, and
depression. An ALJ denied Mr. Castro benefits, and on judicial review the district
court affirmed. We review the district court’s order de novo, and the ALJ’s
decision for substantial evidence and legal error. Mayes v. Massanari, 276 F.3d
453, 458-59 (9th Cir. 2001).
At the administrative hearing, Mr. Castro offered the ALJ recent medical
documentation from a treating physician. The ALJ agreed to accept the
documentation, but failed to include it in the administrative record. The
Commissioner concedes that the ALJ erred by failing to include the documents in
the record. We will not reverse unless the error was harmful. Molina v. Astrue,
674 F.3d 1104, 1111 (9th Cir. 2012) (“[W]e may not reverse an ALJ’s decision on
account of an error that is harmless.”). “[T]he burden of showing that an error is
harmful normally falls upon the party attacking the agency’s determination.”
Shinseki v. Sanders, 556 U.S. 396, 409 (2009).
Mr. Castro testified about his recent medical care, and the ALJ considered
that testimony in his written decision. Furthermore, aside from a diagnosis of
depression, the recent medical documentation was largely consistent with the rest
of the administrative record, including the hearing testimony. With respect to Mr.
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Castro’s depression, the medical notes suggested diminished concentration, energy,
and interest generally, without comment about the extent or severity of those
issues. The diagnosis therefore did not undermine the findings of a state agency
psychologist who, after conducting a full examination, found no work-related
limitations stemming from psychological issues. We therefore conclude that the
ALJ’s failure to incorporate the recent medical documentation into the
administrative record was harmless.
Mr. Castro represented to the ALJ that, including the recent medical
documentation, the record was complete. The ALJ had no duty to further develop
the record.
Finally, substantial evidence supported the ALJ’s determination that Mr.
Castro’s depression was not a severe impairment. An impairment or combination
of impairments is not severe if it does not significantly limit a claimant’s physical
or mental ability to do basic work activities. Webb v. Barnhart, 433 F.3d 683, 686
(9th Cir. 2005). As discussed above, there was little in the written documentation
to support a finding that depression impaired his ability to perform basic work
activities. Moreover, Mr. Castro did not mention depression or other mental
health impediments in his testimony about his own symptoms.
AFFIRMED.
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