IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

BENJAMIN OWEN MARKS, 

Plaintiff, 

v. 

CAROLYN COL VIN, Commissioner, 

Social Secmity Administration, 

Defendant. 

MERRILL SCHNEIDER 

Schneider Kerr Law Offices 

P.O. Box 14490 

Portland, OR 97293 

Attomeys for Plaintiff 

BILLY J. WILLIAMS 

United States Attomey 

JANICE E. HEBERT 

Assistant United States Attomey 

1000 SW Third Ave., Suite 600 

Portland, OR 97204 

1 - OPINION AND ORDER -

Civil No. 3:15-cv-02137-MA 

OPINION AND ORDER 

Case 3:15-cv-02137-MA Document 20 Filed 03/08/17 Page 1 of 18
ERIN F. HIGHLAND 

Special Assistant United States Attorney 

Office of the General Counsel 

Social Security Administration 

701 Fifth Avenue, Suite 2500 MIS 221A 

Seattle, WA 98104 

Attorneys for Defendant 

MARSH, Judge. 

Plaintiff, Benjamin Owen Marks, brings this action for judicial review of a final decision of 

the Commissioner of Social Security (the "Commissioner") denying Plaintiffs application for 

supplemental social security ("SSI") under Title XVI of the Social Security Act (the "Act"). This 

Court has jurisdiction pursuant to 42 U.S.C. § 405(g). For the reasons that follow, the final decision 

of the Commissioner is AFFIRMED. 

PROCEDURAL BACKGROUND 

On March 24, 2010, Plaintiff filed an application for SSI alleging disability beginning 

February 1, 2009, with a protective filing date of February 12, 2010. Tr. 305-308. Plaintiff alleged 

disability due to psoriatic arthritis, depression, bi-polar disorder, plantar fasciitis, and torn meniscus 

in the right knee. Tr. 332. Plaintiffs application was denied initially and upon reconsideration, and 

Plaintiff requested a hearing. Tr. 133-166, 201-204. 

On January 27, 2012, a hearing was held before Administrative Law Judge ("ALJ") Paul G. 

Robeck. Tr. 51-94. On Februaty 10, 2012, the ALJ found Plaintiff not disabled within the meaning 

of the Act. Tr. 164-181. 

Plaintiff filed a request for review by the Appeals Council, and on June 6, 2013, the Appeals 

Council remanded the case to the ALJ. Tr. 182-185, 242. On November 15, 2013, and on February 

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25, 2014, hearings were held before ALJ Robeck. Tr. 42-50, 95-132. On March 20, 2014, the ALJ 

issued a decision denying Plaintiffs application. Tr. 19-36. Plaintiff requested review of the ALJ' s 

decision, which the Appeals Council denied on September 17, 2015. Tr. 1-6. Accordingly, the 

ALJ's March 20, 2014, decision became the final decision of the Commissioner. 

FACTUAL BACKGROUND 

Born in 1961, Plaintiff was 47 years old on February 1, 2009, the alleged disability onset 

date. Tr. 328. Plaintiff has a high school diploma and several years of college. Tr. 55. Plaintiff has 

past relevant work as a social service aide. Tr. 35. 

THE ALJ'S DISABILITY ANALYSIS 

The Commissioner has established a five-step sequential process for determining whether 

a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987); 20 C.F.R. § 

416.920(a)(4)(i)-(v). Each step is potentially dispositive. The claimant bears the burden of proof 

at steps one through four. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). The burden shifts 

to the Commissioner at step five to show that a significant number of jobs exist in the national 

economy that the claimant can perform. Yuckert, 482 U.S. at 141-142; Tackett, 180 F.3d at 1098. 

At step one, the Commissioner determined that Plaintiff had not engaged in substantial 

gainful activity since February 12, 2010, the application date. Tr. 21. 

At step two, the ALJ found Plaintiff suffered from the following severe impairments: 

milll'itis of the bilateral hands; obesity; mild degenerative disc disease of the lumbar and thoracic 

spine; and mild degenerative joint disease of the right knee. Tr. 22. The ALJ noted that other 

symptoms and complaints appear in the medical treatment records periodically, but that there is 

nothing to show that they are more than transient or that they cause significant vocational limitations, 

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Case 3:15-cv-02137-MA Document 20 Filed 03/08/17 Page 3 of 18
and any such impairments are not severe because no objective acceptable medical documentation 

supports such a finding. Tr. 22. The ALJ also found Plaintiff suffered from medically determinable 

mental impairments of depressive disorder, antisocial personality disorder, obsessive compulsive 

disorder, and history of intravenous methamphetamine use, but that considered singly and in 

combination, these impairments do not cause more than minimal limitation in Plaintiffs ability to 

perform basic mental work activities, and are therefore non-severe. Tr. 22. 

At step three, the ALJ determined that Plaintiff does not have an impairment or combination 

of impairments that meet or medically equal any listed impairment. Tr. 27. The ALJ then found 

Plaintiff has the following residual functional capacity ("RFC"): 

Tr. 28. 

[C]laimant has the residual functional capacity to perform sedentary work as defined 

in 20 CPR 416.967(a) except: occasionally climb, balance, stoop, kneel, crouch, and 

crawl; no climbing of ladders, ropes, and scaffolds; and no more than frequent 

handling and fingering. 

At step four, the ALJ concluded that Plaintiff retained the ability to perform the requirements 

of his past relevant work as a social service aide. Tr. 35. Accordingly, the ALJ found that Plaintiff 

was not disabled within the meaning of the Act. Tr. 25. 

SUMMARY OF ISSUES 

Plaintiff argues the ALJ erred in five respects: (!)in discrediting Plaintiffs testimony; (2) 

in discrediting the testimony of lay witness Teresa Mattingly; (3) in failing to adequately consider 

the medical opinions of treating physician Kenneth Scalapino, M.D ., and examining physicians John 

Ellison, M.D., and Ronald D. Duvall, Ph.D.; ( 4) in improperly rejecting severe impairments at step 

two; and (5) in failing to conduct an adequate analysis at steps four and five. 

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Case 3:15-cv-02137-MA Document 20 Filed 03/08/17 Page 4 of 18
STANDARD OF REVIEW 

The district court must affirm the Commissioner's decision if the Commissioner applied 

proper legal standards and the findings are supported by substantial evidence in the record. 42 

U.S.C. § 405(g); Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). "Substantial evidence is 

more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable 

mind might accept as adequate to suppo1t a conclusion." Hill v. Astrue, 698 F.3d 1153 1159 (2012) 

(internal quotations omitted); Valentine v. Commissioner Social Sec. Admin., 574 F.3d 685, 690 (9th 

Cir. 2009). The comt must weigh all the evidence, whether it suppo1ts or detracts from the 

Commissioner's decision. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). The 

Commissioner's decision must be upheld, even if the evidence is susceptible to more than one 

rational interpretation. Batson v. Commissioner Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 

2004). If the evidence supports the Commissioner's conclusion, the Commissioner must be 

affirmed; "the court may not substitute its judgment for that of the Commissioner." Edlund v. 

Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 

DISCUSSION 

I. Plaintifrs Credibility 

To determine whether a claimant's testimony regarding subjective pain or symptoms is 

credible, an ALJ must perform two stages of analysis. 20 C.F.R. § 416.929. The first stage is a 

threshold test in which the claimant must produce objective medical evidence of an underlying 

impairment that could reasonably be expected to produce the symptoms alleged. Molina v. Astrue, 

674 F.3d 1104, 1112 (9th €ir. 2012); Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). 

At the second stage of the credibility analysis, absent evidence of malingering, the ALJ must provide 

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Case 3:15-cv-02137-MA Document 20 Filed 03/08/17 Page 5 of 18
clear and convincing reasons for discrediting the claimant's testimony regarding the severity of the 

symptoms. Carmickle v. Commissioner Soc. Sec. Admin., 533 F.3d 1155, 1166 (9th Cir. 2008); 

Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). 

The ALJ must make findings that are sufficiently specific to permit the reviewing the court 

to conclude that the ALJ did not arbitrarily discredit the claimant's testimony. Ghanim v. Colvin, 

763 F.3d 1154, 1163 (9th Cir. 2014); Tommasetti, 533 F.3d at 1039. Factors the ALJ may consider 

when making such credibility determinations include the objective medical evidence, the claimant's 

treatment hist01y, the claimant's daily activities, inconsistencies in testimony, effectiveness or 

adverse side effects of any pain medications, and relevant character evidence. Ghanim, 763 F.3d at 

1163. Not all of an ALJ's reasons for discrediting a claimant must be upheld, as long as substantial 

evidence supports the ALJ's determination. Carmickle, 533 F.3d at 1162. 

In his decision, the ALJ cited several reasons for discounting Plaintiffs credibility: 

Plaintiffs daily activities showed fewer limitations than alleged; Plaintiffs performance of some 

work beyond his alleged onset date; Plaintiffs failure to appear for multiple medical appointments; 

Plaintiffs drug-seeking behavior; Plaintiffs criminal history involving crimes of dishonesty; 

Plaintiffs poor work histo1y; and the routine and conservative nature of Plaintiffs treatment. 

The ALJ provided specific, clear and convincing reasons, backed by substantial evidence, 

for discounting the severity of Plaintiffs symptoms. Chaudh1y v. Astrue, 688 F.3d 661, 671 (9th 

Cir. 2012). First, the ALJ noted that Plaintiffs daily living activities showed fewer limitations than 

alleged. Contradiction with a claimant's activities of daily living is a clear and convincing reason 

for rejecting a claimant's testimony. Tommasetti, 533 F.3d at 1039. A claimant's daily activities 

may undermine his allegations if the claimant spends a substantial patt of his day engaged in 

6 - OPINION AND ORDER -

Case 3:15-cv-02137-MA Document 20 Filed 03/08/17 Page 6 of 18
activities that are transferrable to a work setting, or ifthe activities contradict his testimony. Orn v. 

As/rue, 495 F.3d 625, 639 (9th Cir. 2007). 

Here, the ALJ cited the fact that Plaintiff was able to cook for himself and for his marijuana 

product sales, used the internet for hours at a time, cleaned, shopped, drove, gardened, and 

maintained his hygiene. Tr. 30. The ALJ further noted Plaintiffs school attendance and part-time 

work at a recovety house. Tr. 30. The ALJ reasonably concluded that Plaintiffs reported activities 

are inconsistent with his allegations of disabling levels of pain and inability to work, and reasonably 

discounted his testimony on this basis. 

The ALJ also cited evidence that Plaintiff worked beyond his alleged onset date. Tr. 30. 

Specifically, Plaintiff testified that he made between $50 and $200 a week from baking goods for 

a medical marijuana bake sale, and there is evidence in the record that Plaintiff was working at a 

recovery house in 2013. Tr. 30. In August 2013, Plaintiff reported he had a day job, that his 

business was growing, and it was closer to turning a profit. Tr. 31. Moreover, in November 2013, 

Plaintiff reported he was running a business that supplied medical marijuana providers, that the 

business was going well, and that he had to travel frequently for work. Tr. 30. 

Performance of job duties on a part-time basis, while not sufficient to establish work full 

time, can constitute a legitimate reason for discounting a claimant's assertion of disability. See Bray 

v. Commissioner o/Soc. Sec. Adm in., 554 F.3d 1219, 1227 (9th Cir. 2009) (finding thatALJ properly 

discounted claimant's credibility when the claimant had worked and sought other work since 

claimant's disability onset date). This inconsistency is a clear and convincing reason for the ALJ to 

conclude Plaintiff was not wholly credible. Mankin v. Commissioner of Social Sec. Admin., Case 

No. 6:14-cv-01249-MA, 2015 WL 4488339, at *5 (D. Or. July 22, 2015). 

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The ALJ also cited Plaintiffs opioid-seeking behavior. Tr. 31. As support for his rationale, 

the ALJ cited numerous instances in the record where Plaintiff became upset and lashed out at his 

physicians after they denied his requests for opiate pain medication. Tr. 31, 1600, 1860, 1864, 1894. 

An ALJ may discount a claimant's credibility based on drug-seeking behavior. Edlund, 253 F.3d 

at 1157. 

The ALJ also found Plaintiff not entirely credible because Plaintiff failed to appear for 

multiple medical and mental health appointments. Tr. 31. A claimant's failure to assert a good 

reason for failing to seek or comply with treatment can adversely impact credibility. Fair v. Bowen, 

885 F.2d 597, 603 (9th Cir. 1989). A claimant's "failure to assert a good reason for not seeking 

treatment, 'or a finding by the ALJ that the proffered reason is not believable, can cast doubt on the 

sincerity of the claimant's pain testimony." Molina, 674 F.3d at 1114. 

Here, the ALJ cited a May 2013 treatment note where Plaintiffs treating physician agreed 

to continue with treatment for Plaintiffs rheumatoid arthritis despite several missed appointments, 

described as a pattern of"serial no-shows." Tr. 31, 1791. In June 2013, the same treating physician 

advised against a new pharmacentical trial because he was unable to safely monitor Plaintiff due to 

Plaintiffs inconsistent follow-up. Tr. 31, 1706. The ALJ also cited Plaintiffs limitation in 

prescription refills in October 2013 as a result of recurrent missed appointments. Tr. 31. 

The ALJ also appropriately found that Plaintiffs 47 felonies, which were primarily for 

crimes of dishonesty such as identity theft and property crimes, undermined his credibility.' Tr. 31-

1 I note that the Social Security Administration recently "eliminat[ ed] the use of the term 

'credibility' from [its] sub-regulatory policy" to "clarify that subjective symptom evaluation is not 

an examination of an individual's character." SSR 16-3p; Titles II and SVI: Evaluation of 

Symptoms in Disability Claims, 81 Fed. Reg. 14167 (Mar. 16, 2016) (superseding SSR 96-7p). 

However, the changes to Administration practice articulated in SSR 16-3p could not apply to the 

8 - OPINION AND ORDER -

Case 3:15-cv-02137-MA Document 20 Filed 03/08/17 Page 8 of 18
32. As noted, an ALJ may use "ordinary techniques of credibility evaluation" in assessing a 

claimant's credibility. Smolen v. Chafer, 80 F.3d 1273, 1284 (9th Cir. 1996); see also Albidrez v. 

Astrue, 504 F.Supp.2d 814, 822 (C.D. Cal. 2007) (ALJ may consider a claimant's reputation for 

truthfulness, including any convictions for crimes involving dishonesty or moral turpitude). 

The ALJ also appropriately considered Plaintiff's sporadic work history before the onset date 

of his disability as undermining his allegation that his impairments are causing his employment. See 

Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (noting that claimant "had an extremely poor 

work history and has shown little propensity to work in her lifetime, which negatively affected her 

credibility regarding her inability to work"); 20 C.F.R. § 416.929(c)(3) (providing that prior work 

history may be considered in assessing credibility). As the ALJ noted, Plaintiff did not earn any 

income between 1987 and 2001, and the income he did earn in other years was minimal. Tr. 32. 

Finally, the ALJ reasonably found that Plaintiff's conservative course of treatment is 

inconsistent with his allegations of disabling impairments. See Parra v. Astrue, 481 F.3d 742, 751 

(9th Cir. 2007) ("evidence of'conservativetreatment' is sufficient to discount a claimant's testimony 

regarding severity of an impairment"). The ALJ noted that Plaintiff received routine treatment for 

his ailments, and that the treatment appears to be controlling his symptoms. Tr. 32-33. 

In short, the ALJ articulated specific, clear and convincing reasons for the adverse credibility 

determination that are backed by substantial evidence in the record as a whole. The ALJ did not en. 

ALJ decision at issue before this court, because 42 U.S.C. § 405(g) does not contain any express 

authorization from Congress allowing the Commissioner to engage in retroactive rulemaking. 

Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 214-215 & n.3 (1988); Garner v. Colvin, 626 

Fed.Appx. 699, 70 I (9th Cir. 2015). 

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Case 3:15-cv-02137-MA Document 20 Filed 03/08/17 Page 9 of 18
II. Lay Witness's Credibility 

Plaintiff also contends the ALJ erred in discounting the credibility of a lay witness statement 

provided by his friend, Teresa Mattingly. Lay witness testimony as to a claimant's symptoms or how 

an impairment affects his ability to work is competent evidence, which the ALJ must take into 

account. See Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009). An ALJ must provide 

"germane" reasons for rejecting lay witness testimony. Molina, 674 F.3d at 1114. 

Here, the ALJ satisfied that requirement for two reasons. First, where a third patty witness 

testifies to the same limits alleged by the claimant, and the claimant's testimony is properly 

discounted, the reasons for discrediting the claimant's testimony also apply to the third party 

witness's testimony. Molina, 674 F.3d at 1122; see also Valentine, 574 F.3d at 694 (where ALJ has 

properly discounted claimant's credibility, failure to reassess third party witness statement as to same 

limitations not error). Here, Ms. Mattingly's description of Plaintiffs functional limitations largely 

reiterated Plaintiff's own description of his limitations, and the ALJ provided adequate reasons for 

discounting Plaintiff's credibility. 

Second, any error in evaluating lay witness testimony is harmless if that testimony "is 

contradicted by more reliable medical evidence that the ALJ credited." Molina, 674 F.3d at 

1118-19. In his thorough review of the medical record, the ALJ here both credited medical evidence 

that was inconsistent with Ms. Mattingly's statements, and provided sufficient reasons for 

concluding that the evidence upon which he relied was reliable. 

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III. Physicians' Opinions 

The ALJ is responsible for resolving conflicts in the medical record, including conflicts 

among physicians' opinions. Carmickle, 533 F.3d at 1164. To reject the uncontroverted opinion of 

a treating or examining physician, the ALJ must present clear and convincing reasons. Bayliss v. 

Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). If a treating or examining doctor's opinion is 

contradicted by another doctor's opinion, it may be rejected by specific and legitimate reasons. 

Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014); Ghanim, 763 F.3d at 1161. 

When evaluating conflicting opinions, an ALJ is not required to accept an opinion that is not 

supported by clinical findings, or is brief or conclusory. Thomas, 278 F.3d at 957. In addition, a 

doctor's work restrictions based on a claimant's subjective statements about symptoms are 

reasonably discounted when the ALJ finds the claimant less than fully credible. Bray, 554 F.3d at 

1228; Batson, 359 F.3d at 1195. 

A. Kenneth Scalapino, M.D. 

On November 2013, treating physician Kenneth Scalapino, M.D., completed a questionnaire 

and opined that due to symptoms from inflammato1y arthritis, osteoarthritis, and calcific tendonitis, 

Plaintiff could walk less than one block at a time, could stand and/or walk no more than one hour 

total in an eight-hour day, and could never kneel, crouch, crawl, reach overhead, or perform fine 

manipulation. Tr. 2007-08. Dr. Scalapino further stated that Plaintiffs concentration and attention 

would be impaired most of the time over a 40-hour work week, and that Plaintiff would miss sixteen 

hours or more a month from even a simple and routine sedentary job because of his impairments, 

symptoms, medications, and their side effects. Tr. 2009. 

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The ALJ rejected Dr. Scalapino's opinion, with the exception of a ten-pound limitation for 

lifting. Tr. 33-34. The ALJ provided two reasons for giving the opinion little weight. Tr. 33-34. 

First, the ALJ found that Plaintiffs daily activities showed greater physical abilities than 

opined by Dr. Scalapino. Tr. 33. Specifically, the ALJ cited the fact that Plaintiff helped with the 

organization and labor for an elderly friend's move to a new apartment. Tr. 33. Plaintiff testified 

that he only participated in the organization for the move, but this testimony conflicts with a 

statement made by Plaintiff in March 2013, that he "moved heavy objects for neighbor." Tr. 115, 

1752. Further, the ALJ noted Plaintiffs cooking, travel, and other activities as part of supplying 

medical marijuana dispensaries conflicted with Dr. Scalapino's assessment. Tr. 33. An ALJ's 

finding that a doctor's opinion is inconsistent with the claimant's admitted daily activities is a 

specific and legitimate reason for rejecting the opinion. Tommasetti, 533 F.3d at 1041. 

Second, the ALJ found that Plaintiff showed no deficiencies in concentration, persistence, 

and pace during a consultative examination with Ronald Duvall, Ph.D., that took place less than two 

months prior to Dr. Scalapino's evaluation. Tr. 33-34. After a mental status examination, Dr. 

Duvall determined that Plaintiff was able to concentrate adequately on work tasks, persist in the task 

to completion, and pace himself through a full work day. Tr. 1416. This is a legally sufficient 

reason for rejecting Dr. Scalapino's opinion. See Andrews v. Shala/a, 53 F.3d 1035, 1041 (9th Cir. 

1995) (stating that "where the opinion of the claimant's treating physician is contradicted, and the 

opinion of a nontreating source is based on independent clinical findings that differ from those of 

the treating physician, the opinion of the nontreating source may itself be substantial evidence; it is 

solely in the province of the ALJ to resolve the conflict") (citation omitted). 

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Case 3:15-cv-02137-MA Document 20 Filed 03/08/17 Page 12 of 18
B. John Ellison, M.D. 

On August 27, 2013, John Ellison, M.D., performed a consultative examination and opined 

that Plaintiff could lift twenty pounds occasionally and I 0 frequently; carry ten pounds occasionally; 

sit without limitations; stand for one hour out of eight; walk for one hour out of eight; required a 

cane to ambulate; could occasionally stoop but could othe1wise never engage in postural movements; 

and could never work at unprotected heights, with moving mechanical parts, or in extreme 

temperatures. Tr. 1406-09. The ALJ gave only some weight to Dr. Ellison's opinion. Tr. 34. 

Citing Plaintiffs daily activities such as running a business, cooking, and helping a neighbor 

move, the ALJ found that the prohibition on all postural movement besides stooping lacks support 

in the record. Tr. 34. Similarly, the ALJ found the environment restrictions on exposure to cold, 

heat, dust, and vibration lacked suppo1t, and that objective evidence does not require the use of a 

cane when walking at all times. Tr. 34. Even assuming the ALJ erred in discounting Dr. Ellison's 

findings on postural or environment limitations, or on Plaintiffs need for a cane, any such error is 

harmless because these limitations do not affect the ALJ's RFC finding that Plaintiff could perform 

sedentary work. See Stout v. Comm 'r Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (an 

error by the ALJ is harmless where the mistake is "nonprejudicial to the claimant or irrelevant to the 

ALJ's ultimate disability conclusion"). 

C. Ronald Duvall, Ph.D. 

On September 13, 2013, Ronald Duvall, Ph.D., completed a medical source statement 

opining, inter alia, that Plaintiff has antisocial personality disorder, with moderate limitations in his 

ability to interact appropriately with the public, supervisors, and co-workers. Tr. 1418-1420. The 

ALJ noted that while significant weight was given to the remainder of Dr. Duvall's opinion, "the 

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restriction on social interaction with the public, supervisors, and co-workers receives less weight 

because the claimant has shown greater ability to handle social interaction." Tr. 23. The record 

includes evidence that Plaintiff started his own business, attended school, helped a marijuana 

dispensary by making cookies for and working at a bake sale, helped a neighbor move, and worked 

at a recovery house. Tr. 26, 99, 115, 1412, 1413, 1752. Moreover, Plaintiff lived with his long-time 

partner, and spent time on his computer playing online games with others. Tr. 26, 102, 1413. Dr. 

Duvall himself observed that Plaintiff was talkative and pleasant throughout the evaluation. Tr. 

1412. Accordingly, the ALJ reasonably rejected Dr. Duvall's opinion on Plaintiffs ability to 

interact with the public. 

IV. Step Two Analysis 

Plaintiff also claims the ALJ erred at step two, arguing that he should have included a number 

of other physical and mental impairments among Plaintiff's severe impairments. At step two, a 

claimant must make a threshold showing that his medically determinable impairments significantly 

limit his ability to perform basic work activities. Yuckert, 482 U.S. at 145; 20 C.F.R. § 416.920( c). 

"Basic work activities" refers to "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. 

§ 416.921 (b ). "An impairment or combination of impairments can be found 'not severe' only ifthe 

evidence establishes a slight abnormality that has 'no more than a minimal effect on an individual's 

ability to work."' Smolen, 80 F.3d at 1290 (quoting SSR 85-28). 

"[T]he step two inquity is a de minimis screening device to dispose of groundless claims." 

Id. (citing Bowen, 482 U.S. at 153-54). An ALJ is also required to consider the "combined effect" 

of an individual's impairments in considering severity. Id. A diagnosis alone is not sufficient to 

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establish a severe impairment. Instead, a claimant must show that his medically determinable 

impairments are severe. 20 C.F.R. § 416.920(c). 

Plaintiff contends substantial medical evidence in the record shows imaging, diagnoses, 

medical visits, serious symptoms, and treatment related to plantar fasciitis, inflammatory 

arthritis/osteoarthritis/psoriatic arthritis, and calcific tendonitis resulting in limited ambulation; and 

obstructive sleep apnea and insomnia, resulting in fatigue and irregular sleep schedule. Plaintiff does 

not, however, cite to any records showing that these conditions caused more than "a slight 

abnormality having more than a minimal" impact on his ability to work. Smolen, 80 F.3d 1273. 

More important, however, any error in failing to include these physical limitations at step two is 

harmless, as the ALJ found other severe impairments and considered functional limitations arising 

from all of Plaintiffs physical impairments when assessing Plaintiff's RFC. See Lewis v. Astrue, 

498 F.3d 909, 910 (9th Cir. 2007) (holding that failure to consider an impairment at step two is 

harmless error where the ALJ includes limitations arising from that impairment in determining the 

claimant's RFC). 

Plaintiff also contends the ALJ erred at step two in failing to include Plaintiff's mental 

impairments of depression and antisocial personality disorder. Upon identification of a colorable 

claim of mental impairment, an ALJ must apply a "special technique[.]" 20 C.F .R. § 4 l 6.920a( a); 

Keyser v. Comm 'r, Soc. Sec. Adm in., 648 F.3d 721, 725-26 (9th Cir. 2011). An ALJ's decision must 

include a specific finding as to the degree of mental limitation in each of four broad functional areas: 

activities of daily living; social functioning; concentration, persistence, and pace; and episodes of 

decompensation. 20 C.F.R. § 416.920a(c) & (e). 

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At step two, the ALJ correctly applied the special technique, discussing how the Plaintiff's 

medically determinable depression, antisocial personality disorder, obsessive compulsive disorder, 

and histoty of intravenous use of methamphetamine caused no restrictions in his activities of daily 

living. Tr. 26-27. The ALJ found Plaintiff has mild limitation in the functional areas of daily living 

and social functioning, no restrictions in concentration, persistence, and pace caused by mental 

impairments. and no episodes of decompensation. Tr. 26. 

The ALJ concluded that, "[b]ecause the claimant's medically determinable mental 

impairments cause no more than 'mild' limitation in any of the first three functional areas and 'no' 

episodes of decompensation which have been of extended duration in the fourth area, they are 

nonsevere" pursuantto 20 C.F.R. § 416.920a( d)(l ). Tr. 27. This finding is suppmted by substantial 

evidence in the record, and the ALJ did not err in omitting Plaintiff's medically determinable mental 

impairments as severe impairments at step two. 

V. Step Four Analysis 

Finally, Plaintiff claims the ALJ etl'ed at step four in finding that Plaintiff could return to his 

past relevant work as a social service aide. At Step Four, "the claimant has the burden to prove that 

he cannot perform his prior relevant work 'either as actually performed or as generally performed 

in the national economy."' Carmickle, 533 F.3d at 1166 (quoting Lewis v. Barnhart, 281 F.3d 1081, 

1083 (9th Cir. 2002)). Under the "actual performance" test, a claimant is capable of performing past 

work and therefore is not disabled if "the evidence shows that a claimant retains the [capacity] to 

perform the functional demands and job duties of a patticular past relevant job as he or she actually 

performed it[.]" SSR 82-61, available at 1982 WL 31387, at *2. 

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Plaintiff contends the ALJ presented an incomplete hypothetical to the VE in that it neglected 

to include the impact of the limitations noted by Drs. Scalapino, Ellison, and Duvall. As discussed 

above, however, the ALJ appropriately rejected the relevant limitations opined by these doctors. 

Plaintiff also contends the ALJ erred in finding Plaintiff could perform past relevant work 

as a social service aide because the ALJ relied on an inaccurate determination by the VE that, as 

performed by Plaintiff, the position was sedentary. At the hearing, the VE testified that although 

social service aide is classified in the DOT as "light duty," Plaintiff performed the job at the 

sedentaty level based upon Plaintiff's description of the job in the record. Tr. 118. 

In his work histo1y report, Plaintiff described his prior job as follows: "sit at a desk and 

monitor the general going on in a 40-bed drug treatment center," which included keeping track of 

the location of the residents and answering telephones. Tr. 345. That some walking may have been 

involved does not mean it was unreasonable for the VE to interpret Plaintiff's prior work as 

sedentaty, as sedentaty work can involve standing and/or walking up to two hours a day. SSR 83-10, 

available at 1983 WL 31251, at *5. Given the evidence before the VE, it was not unreasonable for 

the VE to conclude Plaintiff could perform past relevant work as actually performed, and the ALJ 

did not err in adopting this conclusion. 

Finally, Plaintiff argues that to the extent the ALJ found him limited to sedentaty work, he 

should be found disabled under Medical-Vocational Guideline (Grid) 201.14 at least as of his 50th 

bhihday based upon VE testimony from a prior hearing that Plaintiff does not have any transferrable 

skills. As the Commissioner correctly points out, however, at the prior hearing the hypothetical 

limited Plaintiff to only occasional contact with the public and the VE testified that skills would not 

transfer because social service jobs were "all fairly people intensive." Tr. 89. In the second hearing 

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Case 3:15-cv-02137-MA Document 20 Filed 03/08/17 Page 17 of 18
there was no such restriction on working with public and no testimony on transferrable skills. As 

such, Plaintiff is incorrect that he would be found disabled under the Grid. 

For these reasons, the ALJ did not err in concluding at step four that Plaintiff could perform 

the past relevant work of social service aide. Accordingly, the ALJ did not err in finding Plaintiff 

is not disabled. 

CONCLUSION 

For the foregoing reasons, the Commissioner's final decision denying benefits to Plaintiff 

is AFFIRMED. This action is DISMISSED. 

IT IS SO ORDERED. 

DATED this_% day of March, 2016. 

m~-::???~ Malcolm F. Marsh 

United States District Judge 

18 - OPINION AND ORDERCase 3:15-cv-02137-MA Document 20 Filed 03/08/17 Page 18 of 18