NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOY DAVIS, 

Plaintiff-Appellant, 

 v. 

NANCY A. BERRYHILL, Acting 

Commissioner Social Security, 

Defendant-Appellee.

No. 17-35332

No. 6:15-cv-02429-CL

MEMORANDUM*

Appeal from the United States District Court 

for the District of Oregon

Mark D. Clarke, Magistrate Judge, Presiding

Submitted August 9, 2018**

Before: TROTT, SILVERMAN, and TALLMAN, Circuit Judges.

Joy Davis appeals the district court’s affirmance of the Commissioner of 

Social Security’s denial of her application for disability insurance benefits under 

Title II of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291 

and 42 U.S.C. § 405(g). We review de novo the district court decision, Attmore v. 

 

* 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).

FILED

AUG 13 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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Colvin, 827 F.3d 872, 875 (9th Cir. 2016); and because we conclude that the 

Commissioner’s decision is supported by substantial evidence and free from legal 

error, we affirm.

I

The ALJ proffered several specific, clear, and convincing reasons in support 

of her decision to discount Davis’s testimony, including instances of exaggeration 

and inconsistencies in Davis’s statements, the lack of supporting objective medical 

evidence, and inconsistencies between Davis’s daily activities and her alleged 

symptoms and limitations. See Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 

2017); Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); Tonapetyan v. 

Halter, 242 F.3d 1144, 1148 (9th Cir. 2001); Bray v. Comm’r Soc. Sec. Admin., 

554 F.3d 1219, 1227 (9th Cir. 2009). Davis takes issue with other reasons the ALJ 

provided for rejecting her testimony and disputes specific examples the ALJ 

provided in support of the reasons enumerated above. Even if Davis’s arguments 

might identify errors, however, the other reasons the ALJ provided are specific, 

clear, convincing, and supported by the record, rendering any error in evaluating 

Davis’s testimony harmless. See Molina, 674 F.3d at 1115.

II

The ALJ properly discounted treating physician Dr. Kenny’s opinion, citing 

the lack of supporting objective medical test results, as well as its inconsistency 
3

with the degree of limitation other physicians identified. See Revels v. Berryhill, 

874 F.3d 648, 654 (9th Cir. 2017). The ALJ’s conclusion that Dr. Kenny relied 

upon Davis’s subjective reports to determine Davis’s limitations, rather than her 

own observations or medical testing, was also reasonable. Dr. Kenny observed that 

Davis displayed characteristics such as normal gait, balance, and motor function,

but nevertheless opined that Davis had severe physical limitations at odds with 

these findings, as discussed below. See Tonapetyan, 242 F.3d at 1149. 

III

Davis argues that the ALJ committed reversible error at Step 2 when the 

ALJ did not accept Dr. Kenny’s “diagnosis” of peripheral neuropathy as one of her 

medically determined physical impairments. Citing 20 C.F.R. § 404.1508, the ALJ 

rejected Dr. Kenny’s assertion that Davis suffered from this condition. This 

regulation requires “medical evidence consisting of signs, symptoms, and 

laboratory findings.” In turn, 20 C.F.R. § 404.1528 says that “[y]our statements 

alone are not enough to establish that there is a physical . . . impairment.” 

Moreover, the regulations require “medically acceptable clinical diagnostic 

techniques” to establish the signs of a claimed impairment. 20 C.F.R. 

§ 404.1528(b)-(c) (2014).

Here, the ALJ did not accept Dr. Kenny’s “diagnosis” because Dr. Kenny 

“failed to provide workup for [peripheral neuropathy] consistent with what is 
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required to be considered by the Social Security Administration and there is 

electrodiagnostic testing without findings consistent with peripheral neuropathy 

(SSR 14-1p; Ex 16F; 3F/ 4-6).” The agency’s listing for peripheral neuropathy 

requires “disorganization of motor function . . . in spite of prescribed treatment,” 

meaning “[s]ignificant and persistent disorganization of motor function in two 

extremities, resulting in sustained disturbance of gross and dexterous movements, 

or gait and station.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 §§ 11.14, 11.04B (2014). 

Dr. Kenny’s notes indicate she observed Davis had “normal gait, normal balance, 

[and] normal motor [function],” and do not indicate Davis displayed objective 

signs of “disorganization of motor function” in her extremities, see 20 C.F.R. Pt. 

404, Subpt. P, App. 1 §§ 11.14, 11.04B (2014). While Dr. Kenny stated Davis 

complained of numbness in her hands and right foot, this was based on Davis’s 

self-reported symptoms, rather than diagnostic testing.

Nowhere in his briefs does Davis’s attorney dispute that the workup required 

by the Social Security Administration is not present in this record. Counsel’s 

answer to the ALJ’s reference to the lack of corroboration in the electrodiagnostic 

testing is that the testing “did not rule out peripheral neuropathy.” A failure to rule 

out a condition is not proof of that condition.
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Counsel’s argument that the ALJ “simply disagreed with Dr. Kenny’s 

findings and substituted “her own medical judgment in place of an expert medical 

opinion” is belied by the record.

Accordingly, the ALJ did not err at Step 2 by not finding that peripheral 

neuropathy constituted a medically determinable impairment. The ALJ properly 

found Dr. Kenny’s diagnosis of peripheral neuropathy to be unsupported by 

objective medical evidence from her or from elsewhere in the record. Dr. Kenny’s 

notes do not describe findings consistent with the agency’s regulations concerning 

peripheral neuropathy. See Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 

2005); 20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 11.04B, 11.00C (2014). 

Moreover, Davis does not identify any limitations stemming from peripheral 

neuropathy the ALJ did not include in the sequential analysis. As a result, Davis 

has not demonstrated any error that might be harmful. See Molina, 674 F.3d at 

1115.

IV

Davis’s claim that the ALJ erred in formulating the RFC by omitting 

limitations from her testimony and Dr. Henderson’s and Dr. Kenny’s opinions 

turns on her assertions of error for earlier steps in the ALJ’s analysis. As Davis has 

not shown the ALJ committed harmful error in these steps, her contention lacks 

support. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175-76 (9th Cir. 2008).
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Although the ALJ erred by failing to resolve the discrepancies between the 

Dictionary of Occupational Titles (“DOT”) and Davis’s RFC for two of the 

positions the vocational expert identified, the errors were harmless. The ALJ 

properly relied upon the vocational expert’s testimony that Davis could perform 

the position of counter clerk (photofinishing). The ALJ’s and vocational expert’s

error in referencing the incorrect DOT number for the counter clerk

(photofinishing) position was harmless. This job is included at DOT #249.366-010, 

one digit different from the number the vocational expert cited. The vocational 

expert’s testimony that the counter clerk position he identified corresponded with a 

special vocational preparation (“SVP”) level of 2 in the DOT, the SVP for DOT 

#249.366-010, clarifies this is the position to which he was referring. 

Davis’s assertion that her RFC limitation to understanding, remembering, 

and carrying out only simple instructions conflicts with the counter clerk position’s 

requirement of Reasoning Level 2 lacks merit. Davis cites Rounds v. Comm’r Soc.

Sec. Admin., 807 F.3d 996 (9th Cir. 2015), for support. However, we specifically 

distinguished the facts in Rounds from those in cases such as Davis’s, in which the 

RFC limited the claimant to “simple” tasks. See id. at 1004 & n.6. There, the 

conflict arose from Rounds’s particular limitation to “one-to two-step tasks” and 

Reasoning Level 2’s requirement to follow “detailed” instructions. See id.

Therefore, Rounds does not compel the conclusion that the counter clerk position’s 
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Reasoning Level 2 requirement conflicts with Davis’s RFC limitation to simple 

tasks.

Any error the ALJ committed by not fully incorporating examining 

physician Dr. Henderson’s opinion into Davis’s residual functional capacity 

(“RFC”) was harmless. The ALJ included in the RFC the requirement that Davis 

have the option to change from seated to standing position every twenty minutes, a 

more stringent limitation than Dr. Henderson’s restriction to sitting for ninety 

minutes and standing (and ostensibly walking) for one hour at a time. In addition,

the counter clerk position the ALJ found Davis could perform is classified as “light 

work,” which entails “standing or walking, off and on, for a total of approximately 

6 hours of an 8-hour workday,” and “[s]itting may occur intermittently during the 

remaining time.” SSR 83-10, 1983 WL 31251, at *6 (1983). This is consistent with 

Dr. Henderson’s opinion that Davis could stand and walk for six hours a day in 

combination and up to three hours a day each. Furthermore, the ALJ included in 

the hypothetical to the vocational expert the limitations that the individual could 

“sit, stand, and walk for six hours in an eight-hour day but requires the option to 

alternate positions between sitting and standing every 20 minutes and also requires 

the usual breaks at two-hour intervals,” consistent with Dr. Henderson’s opinion.

Thus, any error was “inconsequential to the ultimate nondisability determination,” 
8

rendering it harmless. See Molina, 674 F.3d at 1115 (citations and internal 

quotations omitted).

AFFIRMED.