NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 10 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CASHELLA BENJAMIN, No. 16-16747
Plaintiff-Appellant, D.C. No. 1:15-cv-02995-NJV
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Nandor J. Vadas, Magistrate Judge, Presiding
Submitted December 8, 2017**
San Francisco, California
Before: THOMAS, Chief Judge, and LUCERO*** and OWENS, Circuit Judges.
Cashella Benjamin appeals from the district court’s judgment affirming the
Commissioner of Social Security’s denial of Benjamin’s application for
*
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 Carlos F. Lucero, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
supplemental security income under Title XVI of the Social Security Act. As the
parties are familiar with the facts, we do not recount them here. We affirm.
We review the district court’s decision de novo, and the Commissioner’s
denial of benefits must be supported by substantial evidence and a correct
application of the law. Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009) (noting that substantial evidence “is a highly deferential standard of
review”).
The Commissioner’s determination at step two in the sequential evaluation
process is supported by substantial evidence. See 42 U.S.C. § 405(g); 20 C.F.R.
§ 416.920(a)(4)(ii), (c). The Administrative Law Judge (“ALJ”) properly relied on
the absence of medical evidence that Benjamin’s depression and anxiety caused
more than minimal limitations in her ability to perform basic work activities, and
were therefore not “severe.” Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005)
(“An impairment is not severe if it is merely ‘a slight abnormality (or combination
of slight abnormalities) that has no more than a minimal effect on the ability to do
basic work activities.’” (citation omitted)). Even if her doctors at the Schuman-
Liles Clinic constitute a “treating source” under Benton v. Barnhart, 331 F.3d
1030, 1035-39 (9th Cir. 2003), none of them opined that Benjamin had more than
minimal limitations in her ability to perform basic work activities. The ALJ had a
germane reason for giving “little weight” to the opinion of Ellen Vargas, a
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Licensed Clinical Social Worker, because it was inconsistent with the underlying
treatment notes. See Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1223-24 (9th
Cir. 2010) (noting that “other source” opinions, such as from social workers, are
not entitled to the same deference as acceptable medical sources, and the ALJ may
discount such opinions if it gives “germane” reasons for doing so (citations
omitted)). Further, even if Benjamin’s mental impairments met the twelve-month
duration requirement, substantial evidence supports that they did not cause more
than minimal limitations in her ability to perform basic work activities.1 See
20 C.F.R. §§ 416.909, 416.920(a)(4)(ii).
Substantial evidence also supports the Commissioner’s determination at step
three that Benjamin’s depression and anxiety did not meet or equal a listed
impairment. See 42 U.S.C. § 405(g); 20 C.F.R. § 416.920(a)(4)(iii), (d). Contrary
to Benjamin’s contention, substantial evidence supports that her mental
impairments did not meet the criteria for Listing 12.06 (Anxiety Related
Disorders). 20 C.F.R. pt. 404, subpt. P, app. 1 (Dec. 2, 2013).
In addition, substantial evidence supports the Commissioner’s determination
that Benjamin’s residual functional capacity sufficiently incorporated her mild
1
Benjamin has waived her argument that the Commissioner violated her due
process rights and discriminated against her based on gender because she failed to
raise it in the district court. See Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir.
1997) (per curiam). Moreover, her argument is unpersuasive given that the
duration requirement is not dispositive here.
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mental limitations in concentration, persistence, or pace. See 20 U.S.C. § 405(g);
20 C.F.R. §§ 416.920(a)(4), (e), 416.945(a).
Likewise, substantial evidence supports that the ALJ’s hypothetical to the
vocational expert sufficiently incorporated Benjamin’s mild mental limitations in
concentration, persistence, or pace. See Osenbrock v. Apfel, 240 F.3d 1157, 1165
(9th Cir. 2001) (holding that “[t]he omission of depression from the hypothetical
question is supported by substantial evidence in the record” because “[t]he most
recent medical evaluations by [the claimant’s] treating physician diagnosed [his]
depression as a mild impairment, which presented no significant interference with
the ability to perform basic work-related activities”).
Finally, remand is not warranted based on the new medical evidence
Benjamin submitted to the Appeals Council after it issued its decision. If Brewes
v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1159-60 (9th Cir. 2012), applies,
this new evidence does not change that substantial evidence supports the
Commissioner’s decision. And, under 42 U.S.C. § 405(g), this new evidence is not
“material” because there is not a “reasonable possibility” that it would have altered
the Commissioner’s decision. Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir.
2001) (citation omitted).
AFFIRMED.
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