Page 1 – OPINION AND ORDER 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

JAY D. WALKER, 

 Plaintiff, 

 v. 

NANCY A. BERRYHILL, 

Acting Commissioner of Social 

Security, 

 Defendant. 

 

 Case No. 6:16-cv-00311-JR 

 

 OPINION AND ORDER

RUSSO, Magistrate Judge: 

Plaintiff Jay Walker brings this action for judicial review of the final decision of the 

Commissioner of Social Security (“Commissioner”) denying his applications for Title XVI 

Social Security Income (“SSI”) and Title II Disability Insurance Benefits (“DIB”) under the 

Social Security Act (“Act”). All parties have consented to allow a Magistrate Judge enter final 

orders and judgment in this case in accordance with Fed. R. Civ. P. 73 and 28 U.S.C. § 636(c). 

For the reasons set forth below, the Commissioner’s decision is affirmed and this case is 

dismissed. 

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PROCEDURAL BACKGROUND

 On February 27, 2012, plaintiff applied for DIB and SSI, alleging disability as of April 1, 

2011. Tr. 193-202. His applications were denied initially and upon reconsideration. Tr. 129-36, 

139-43. On September 18, 2014, a hearing was held before an Administrative Law Judge 

(“ALJ”), wherein plaintiff was represented by counsel and testified, as did a vocational expert 

(“VE”). Tr. 44-70. On November 14, 2014, the ALJ issued a decision finding plaintiff not 

disabled within the meaning of the Act. Tr. 19-32. After the Appeals Council denied his request 

for review, plaintiff filed a complaint in this Court. Tr. 1-5. 

STATEMENT OF FACTS

 Born on August 31, 1966, plaintiff was 44 years old on the alleged onset date and 48 

years old at the time of the hearing. Tr. 50, 193. He graduated from high school and worked 

previously as a commercial painter. Tr. 65-66, 215. Plaintiff alleges disability due to diabetes, 

heart disease, high blood pressure, and hand pain. Tr. 50-52, 214. 

STANDARD OF REVIEW

 The court must affirm the Commissioner’s decision if it is based on proper legal 

standards and the findings are supported by substantial evidence in the record. Hammock v. 

Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is “more than a mere scintilla. It 

means such relevant evidence as a reasonable mind might accept as adequate to support a 

conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations 

omitted). The court must weigh “both the evidence that supports and detracts from the 

[Commissioner’s] conclusions.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). 

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Variable interpretations of the evidence are insignificant if the Commissioner’s interpretation is 

rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 

 The initial burden of proof rests upon the claimant to establish disability. Howard v. 

Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must 

demonstrate an “inability to engage in any substantial gainful activity by reason of any medically 

determinable physical or mental impairment which can be expected . . . to last for a continuous 

period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). 

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

a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 

416.920. First, the Commissioner determines whether a claimant is engaged in “substantial 

gainful activity.” Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 404.1520(b), 416.920(b). If so, the 

claimant is not disabled. 

 At step two, the Commissioner evaluates whether the claimant has a “medically severe 

impairment or combination of impairments.” Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 

404.1520(c), 416.920(c). If the claimant does not have a severe impairment, he is not disabled. 

 At step three, the Commissioner determines whether the claimant’s impairments, either 

singly or in combination, meet or equal “one of a number of listed impairments that the 

[Commissioner] acknowledges are so severe as to preclude substantial gainful activity.” Yuckert, 

482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is presumptively 

disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141. 

 At step four, the Commissioner resolves whether the claimant can still perform “past 

relevant work.” 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant can work, he is not 

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disabled; if he cannot perform past relevant work, the burden shifts to the Commissioner. At step 

five, the Commissioner must establish that the claimant can perform other work existing in 

significant numbers in the national or local economy. Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§ 

404.1520(g), 416.920(g). If the Commissioner meets this burden, the claimant is not disabled. 20 

C.F.R. §§ 404.1566, 416.966. 

THE ALJ’S FINDINGS

 At step one of the five step sequential evaluation process outlined above, the ALJ found 

plaintiff had not engaged in substantial gainful activity since the alleged onset date. Tr. 21. At 

step two, the ALJ determined the following impairments were medically determinable and 

severe: “coronary artery disease with a history of myocardial infarction; hypertension; obesity; 

right shoulder capsulitis; and mild carpal tunnel syndrome.” Id. At step three, the ALJ found that 

plaintiff’s impairments, either singly or in combination, did not meet or equal the requirements 

of a listed impairment. Tr. 24. 

 Because he did not establish presumptive disability at step three, the ALJ continued to 

evaluate how plaintiff’s impairments affected his ability to work. The ALJ resolved that plaintiff 

had the residual functional capacity (“RFC”) to perform light work, except that: 

[he] is further limited to no more than occasional climbing of ropes, ladders and 

scaffolds. He is limited to no more than frequent reaching on the right, as well as 

frequent bilateral handling, grasping, fingering and feeling. [He] would also need 

to avoid concentrated exposure to fumes, dust, gases, poor ventilation, and other 

noxious odors. 

Tr. 25. 

At step four, the ALJ determined plaintiff could not perform any past relevant work. Tr. 

30. At step five, the ALJ concluded, based on the VE’s testimony, that there were a significant 

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number of jobs in the national and local economy that plaintiff could perform despite his 

impairments, such as bench worker, inspector of hand packaging, and quality control checker of 

small product assembly. Tr. 31. 

DISCUSSION

Plaintiff argues that the ALJ erred by: (1) discrediting his subjective symptom statements; 

(2) rejecting depression-related chart notes from Mary Allison, M.D., and Sudeshna Banerjee, 

M.D.; (3) failing to order a psychological evaluation; and (4) neglecting to account for all of his 

limitations in the RFC and at step five. 

I. Plaintiff’s Testimony 

Plaintiff asserts the ALJ wrongfully discredited his subjective symptom testimony 

concerning the severity of his impairments. When a claimant has medically documented 

impairments that could reasonably be expected to produce some degree of the symptoms 

complained of, and the record contains no affirmative evidence of malingering, “the ALJ can 

reject the claimant’s testimony about the severity of . . . symptoms only by offering specific, 

clear and convincing reasons for doing so.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 

1996) (citation omitted). A general assertion that the claimant is not credible is insufficient; the 

ALJ must “state which . . . testimony is not credible and what evidence suggests the complaints 

are not credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered 

must be “sufficiently specific to permit the reviewing court to conclude that the ALJ did not 

arbitrarily discredit the claimant’s testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 

1995) (internal citation omitted). If the “ALJ’s credibility finding is supported by substantial 

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evidence in the record, [the court] may not engage in second-guessing.” Thomas v. Barnhart, 278 

F.3d 947, 959 (9th Cir. 2002) (citation omitted). 

At the September 2014 hearing, plaintiff testified that, beginning in April 2011, his 

breathing problems and diabetes, which also caused depression, rendered him unable to work. 

Tr. 50-51. Specifically, plaintiff “would shut down for days at a time [and] couldn’t do nothing.” 

Tr. 51. Plaintiff also endorsed generalized pain in his hands, legs, and feet, as well as intermittent 

heart pains following his January 2012 heart attack. Tr. 50, 52. As a result of these impairments, 

plaintiff stated that he cannot “walk that far” or use his hands, even to open a can with a can 

opener, because they are “crippled.” Tr. 52, 57, 59. Plaintiff indicated that he had quit smoking 

cigarettes “[a]bout a month ago” and quit using methamphetamine “[a]bout a year ago.” Tr. 53. 

In addition, plaintiff remarked that, after a long bout of non-compliance, he was currently taking 

his prescription medications for hypertension and diabetes, which he described as “pretty good” 

in terms of effectiveness. Tr. 52-54. Regarding mental health treatment, plaintiff testified that his 

“doctor gave [him] some depression medication once and [he] took it for a while but . . . quit 

taking it” because it “made [him] feel bad.” Tr. 61. Plaintiff did not thereafter “talk to the doctor 

about trying a different [anti-depressant] medication” and he could not identify any reason why 

he had not sought psychological counseling. Id. When asked to describe his activities, plaintiff 

reported preparing meals a couple times per day, performing light cleaning, watching television, 

and leaving the house to go to the grocery store or medical appointments two- to three-times per 

week. Tr. 55-56. 

After summarizing his hearing testimony, the ALJ determined that plaintiff’s medically 

determinable impairments could reasonably be expected to produce some degree of symptoms, 

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but his statements regarding the extent of these symptoms were not fully credible due to his 

medical non-compliance and activities of daily living, as well as the lack of corroborating 

medical evidence.1 Tr. 25-30. 

Notably, the ALJ found that plaintiff’s “credibility regarding the severity of his 

impairments is diminished by a lack of compliance with prescribed medications and adhering to 

prescribed treatment for most of the period.” Tr. 26. An ALJ may rely on an “unexplained or 

inadequately explained failure to seek treatment or to follow a prescribed course of treatment” in 

affording less weight to a claimant’s testimony. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th 

Cir. 2008) (citation and internal quotations omitted). As the ALJ noted, “[t]here are numerous 

reports throughout the record that [plaintiff] was not taking his medications and did not attend 

medical appointments.” Tr. 26; see also Tr. 332-33, 335, 365, 406-08, 414, 419-20, 423-24, 437, 

470, 485, 522, 526-27 (plaintiff’s providers noting his failure to attend follow-up appointments 

and/or non-compliance with prescribed medications). For instance, plaintiff was discharged from 

a cardiac rehabilitation program following his heart attack because he “did not show for 

subsequent appointments.” Tr. 335. Despite alleging that his lower extremities are painful to the 

point of being “crippled,” plaintiff did not seek any treatment for his hands or wrists outside of 

obtaining an initial assessment in November 2011. Tr. 451, 572-74. Several providers counseled 

plaintiff, on numerous occasions, about lifestyle changes (e.g., smoking cessation, increasing 

activity levels, etc.) that he neglected to implement. See, e.g., Tr. 332-33, 343-44, 365, 406-08, 

414, 419-20, 423-24, 430, 470, 509. 

 

1

 The Court notes that, pursuant to SSR 16-3p, the ALJ is no longer tasked with making an 

overarching credibility determination and instead assesses whether the claimant’s subjective 

symptom statements are consistent with the record as a whole. See SSR 16-39, available at 2016 

WL 1119029 (superseding SSR 96-7p). Although the ALJ’s decision was issued more than one 

year before SSR 16-3p became effective, it is nonetheless compatible therewith. 

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Moreover, while plaintiff testified that he cannot work due to depression, he did not seek 

any mental health treatment outside of procuring an anti-depressant in December 2012, which he 

subsequently stopped taking.2 Indeed, plaintiff concedes that he “has not obtained counseling or 

tried any other medications” to address his allegedly disabling mental impairment. Pl.’s Opening 

Br. 13. Plaintiff nonetheless asserts that “[t]here is evidence in this case that depression itself has 

interfered with [his] ability to obtain treatment for his various conditions.” Id. Aside from the 

fact that plaintiff does not follow this contention with any citation, the record before the Court 

evinces plaintiff obtained care, even for his mental impairment, when he wanted or believed he 

needed it. See Tr. 353 (plaintiff seeking medical treatment in November 2012 after his shopping 

cart was hit by a car in a parking lot), 365 (plaintiff seeking medical treatment in January 2013 

for an abscess caused by injecting methamphetamine), 432 (plaintiff seeking medical treatment 

in October 2011 after stepping on a nail), 438-40 (plaintiff seeking medical treatment in 

December 2012 for depression). Significantly, plaintiff’s own testimony at the hearing did not 

suggest that his depression imposed any barrier to seeking treatment. See Tr. 56, 61 (plaintiff 

acknowledging that he left the house multiple times per week to attend medical appointments 

and did not seek mental health treatment after December 2012, including for medication 

management, because he did not perceive it as desirable or necessary). 

Further, as discussed in Section II, the providers who observed plaintiff to be depressed – 

i.e., Drs. Allison and Banerjee – were neither mental health specialists nor aware of plaintiff’s 

drug use. See Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995) (examining psychologist’s 

“conclusions regarding depression . . . were unreliable because of [the claimant’s] 

 

2

 Although plaintiff testified that he “didn’t like the feel of” this anti-depressant medication, he 

did not contemporaneously disclose any side-effects to his providers. Tr. 61. 

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contemporaneous substance abuse”). To the extent they exist within the record, plaintiff’s 

psychological findings (which both pre- and post-date Dr. Allison’s treatment of plaintiff) were 

all normal. See, e.g., Tr. 279, 338, 406, 476, 484, 486, 551. Finally, as defendant observes, 

plaintiff’s medical non-compliance was both “global” and “noted before he was diagnosed with 

depression in December 2012.” Def.’s Resp. Br. 8 (citing Tr. 332-33, 341, 438, 443, 483, 485-

86). 

Accordingly, plaintiff’s contention regarding depression is not born out by the record. 

See Molina v. Astrue, 674 F.3d 1104, 1113-14 (9th Cir. 2014) (affirming the ALJ’s credibility 

finding where “there was no medical evidence that [the claimant’s] resistance [to treatment] was 

attributable to her mental impairment rather than her own personal preference”). Given these 

circumstances, the Court finds that the ALJ reasonably concluded plaintiff’s failure to seek 

treatment and follow his doctor’s recommendations undermined his subjective symptom 

testimony concerning the extent of his impairments. 

The ALJ also found that plaintiff’s testimony was contradicted by the medical record, 

which revealed that his physical impairments were not as significant as alleged. Tr. 27-28. 

Central to this determination was the fact that plaintiff’s examination findings were largely 

unremarkable and his treatment consisted almost exclusively of various medication regimes, 

which provided periods of good control when properly implemented. “[E]vidence of 

conservative treatment is sufficient to discount a claimant’s testimony regarding severity of an 

impairment.” Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007), cert. denied, 552 U.S. 1141 

(2008) (citations and internal quotations omitted); see also Lingenfelter v. Astrue, 504 F.3d 

1028, 1040 (9th Cir. 2007) (“whether the alleged symptoms are consistent with the medical 

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evidence” is a relevant consideration in evaluating the claimant’s credibility) (citations omitted). 

The ALJ is correct; outside of prescription medications and joint injections in his shoulder, 

plaintiff declined other modalities of treatment. See, e.g., Tr. 406, 495, 497, 505-13. When he 

was compliant with his doctor’s orders, he reported an amelioration of symptoms. See Tr. 53-54 

(plaintiff testifying at the hearing that his hypertension and diabetes medications were effective), 

337 (plaintiff reporting in February 2012 that he “is compliant with his medications” and 

“[d]enies any limitations”); see also Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 

(9th Cir. 2006) (“[i]mpairments that can be controlled effectively with medication are not 

disabling”). 

Thus, the ALJ provided clear and convincing reasons, supported by substantial evidence, 

for rejecting plaintiff’s subjective symptom statements. As such, this Court need not discuss all 

of the reasons provided by the ALJ because at least one legally sufficient reason exists. 

Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008). The ALJ’s 

evaluation of plaintiff’s testimony is affirmed. 

II. Step Two Finding 

 Plaintiff contends the ALJ erred by failing to include depression as a severe impairment.3

At step two, the ALJ determines whether the claimant has an impairment, or combination of 

 

3

 Plaintiff does not characterize this argument as a step two challenge, asserting instead that 

“[t]he ALJ erred in failing to credit the opinions of [his] treating doctors regarding his 

depression.” Pl.’s Opening Br. 11-12. Yet, as discussed herein, Drs. Allison and Banerjee did not 

formally evaluate plaintiff for depression, in part due to the fact that neither doctor is a mental 

health specialist. Tr. 342-45, 418-30, 522-31. In other words, Dr. Allison’s and Dr. Banerjee’s 

observations of plaintiff’s emotional state do not qualify as opinion evidence within the purview 

of the Act. See 20 C.F.R. §§ 404.1527(a)(2),416.927(a)(2) (“[m]edical opinions are statements 

from . . . acceptable medical sources that reflect judgments about the nature and severity of your 

impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite 

impairment(s), and your physical or mental restrictions”). Even assuming the chart notes of Drs. 

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impairments, that is both medically determinable and severe. 20 C.F.R. §§ 404.1520(c), 

416.920(c). An impairment is severe if it “significantly limit[s]” the claimant’s ability to do basic 

work activities, which are defined as “abilities and aptitudes necessary to do most jobs.” 20 

C.F.R. §§ 404.1521, 416.921; Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). An 

impairment is medically determinable if it is diagnosed by an acceptable medical source and 

based upon acceptable medical evidence; “under no circumstances may the existence of an 

impairment be established on the basis of symptoms alone.” SSR 96-4p, available at 1996 WL 

374187; 20 C.F.R. §§ 404.1513(a), 416.913(a). The step two threshold is low; the Ninth Circuit 

describes it as a “de minimus screening device to dispose of groundless claims.” Smolen, 80 F.3d 

at 1290 (citation omitted). 

The record contains few references to plaintiff’s mental impairment. On December 5, 

2012, nearly two years after the alleged onset date, plaintiff first complained of depression due to 

his living situation and a conflict with his mother. Tr. 439-40. Although no formal mental health 

evaluation was undertaken at that time, plaintiff was prescribed an anti-depressant and instructed 

to return in one week. Id. On December 12, 2012, plaintiff reported “feel[ing] much better,” in 

part because he had “talked [to] his mother.” Tr. 438. The clinician independently observed that 

plaintiff had a “[b]righter affect [and was] smiling.” Id. As specified in Section I, plaintiff 

 

Allison and Banerjee qualify as opinion evidence, it is well-established that an ALJ may 

disregard a medical report that does “not show how [a claimant’s] symptoms translate into 

specific functional deficits which preclude work activity.” Morgan v. Comm’r of Soc. Sec. 

Admin., 169 F.3d 595, 601 (9th Cir. 1999); see also Johnson v. Shalala, 60 F.3d 1428, 1432 (9th 

Cir. 1995) (ALJ need not credit a medical opinion that includes “no specific assessment of [the 

claimant’s] functional capacity”); Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (ALJ 

properly rejected a medical opinion that failed to explain the extent or significance of a 

condition).

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thereafter stopped taking his anti-depressant and did not seek any further psychological 

treatment. 

On December 17, 2012, plaintiff presented to Dr. Allison, an endocrinologist, who 

admonished plaintiff for “miss[ing] multiple follow-up visits,” and for having stopped most of 

his medications and checking his blood sugars at home. Tr. 423-24. Plaintiff responded by 

explaining that he had recently gone “through a long bout of depression.” Tr. 423. 

On January 1, 2013, plaintiff was admitted to the hospital due to complications caused by 

his “chronic” and “concurrent use of methamphetamine.” Tr. 365-85. 

On January 11, 2013, plaintiff was again admitted to the hospital due to shortness of 

breath. Tr. 405. Upon his discharge the following day, Dr. Banerjee, a cardiologist, noted 

plaintiff’s significant medical non-compliance and “[q]uestionable depression.” Tr. 408. 

On January 17, 2013, plaintiff followed-up with Dr. Allison. Tr. 419. While plaintiff had 

restarted his medications and ceased smoking, he was not monitoring his blood sugars and had 

“not made any significant changes to his diet or his exercise.” Tr. 419-20. Dr. Allison observed 

that plaintiff had “multiple problems including significant depression, which is affecting his 

compliance with his medications and overall health”; however, she did not formally evaluate 

plaintiff for depression, record any clinical signs or symptoms, or refer plaintiff to mental health 

treatment. Tr. 419-21. The doctor also failed to acknowledge or otherwise account for plaintiff’s 

significant drug use. Id. 

There are no other chart notes in the record from Dr. Allison and plaintiff thereafter did 

not seek treatment from Dr. Banerjee for more than one year. In March 2014, plaintiff reinitiated 

care with Dr. Banerjee but did not express any feelings of depression, despite only “tak[ing] his 

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medications ‘on-and-off.’” Tr. 527-29. At his next appointment with Dr. Banerjee in July 2014, 

plaintiff explained that “his mom fell and broke her hip and he has been attending to her in the 

hospital and rehabilitation center,” which made him “very depressed.” Tr. 522. In the clinical 

impression section, Dr. Banerjee remarked that plaintiff “appear[ed] quite depressed,” but, like 

Dr. Allison, he did not perform a diagnostic assessment or otherwise note any clinical signs. Tr. 

522-24. 

At step two, the ALJ resolved that plaintiff’s depressive disorder was medically 

determinable but not severe. Tr. 23-24. In making this finding, the ALJ accurately summarized 

the aforementioned evidence, expressly denoting that Dr. Allison “made no objective mental 

status findings consistent with depression and simply described [plaintiff] as ‘very pleasant,’” 

and “did not know about his substance abuse.” Tr. 23. The ALJ also considered the report of 

state agency consulting source Bill Hennings, Ph.D. Tr. 23-24. Dr. Hennings reviewed the record 

in April 2013 and discussed Dr. Allison’s chart notes, including that she did “not list any signs or 

symptoms” of depression and was unaware of plaintiff’s methamphetamine use. Tr. 121-23. As 

the ALJ acknowledged at step two, Dr. Hennings opined that plaintiff was no more than mildly 

limited in his activities of daily living, social functioning, and concentration, persistence, or pace, 

with no episodes of decompensation. Tr. 24, 123. 

Initially, “[a]ny alleged error at step two was harmless because step two was decided in 

[plaintiff’s] favor with regard to other ailments.” Mondragon v. Astrue, 364 Fed. Appx. 346, 348 

(9th Cir. 2010); Tr. 21. Regardless, in formulating plaintiff’s RFC, the ALJ “considered all 

symptoms and the extent to which these symptoms can reasonably be accepted as consistent with 

the objective medical evidence and other evidence,” and cited to the pertinent regulations. Tr. 25. 

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This analysis entailed evaluation of the relevant and probative medical evidence, as well as 

testimony from plaintiff and his mother. Tr. 26-30. 

As addressed in Section I, the ALJ properly found plaintiff’s subjective symptom 

statements to be not fully credible. Underlying this finding is the ALJ’s implicit determination 

that plaintiff’s broad medical non-compliance was related to personal preference – including the 

choice to use methamphetamine – as opposed to any latent psychological impairment. See, e.g., 

Tr. 22-23, 29-30. Concerning the medical evidence, the ALJ afforded “significant weight” to Dr. 

Hennings’ opinion that plaintiff “had only mild limitations in functioning and no severe mental 

impairment” because “it was based on a review of all of [plaintiff’s] medical records available at 

the time for a comprehensive opinion of functioning” and “consistent with the overall evidence.” 

Tr. 29. Although the ALJ did not explicitly discuss Dr. Banerjee’s July 2014 observation of 

depression, he did note that “[e]vidence subsequent to [Dr. Hennings’] review is not persuasive 

[because there] are no significant findings upon mental status exam.” Tr. 29. 

The Court finds the ALJ reasonably concluded that, in light of the record as a whole, 

plaintiff’s depression was mild and therefore did not significantly limit his ability to do basic 

work activities. Tr. 22-23, 29; see also 20 C.F.R. §§ 404.1520a(d)(1), 416.920a(d)(1) (“[i]f we 

rate the degree of your limitation in the [areas of activities of daily living, social functioning, and 

concentration, persistence, or pace] as “none” or “mild” . . . we will generally conclude that your 

impairment(s) is not severe”); see also Hoopai v. Astrue, 499 F.3d 1071, 1076-87 (9th Cir. 2007)

(mild mental impairments need not be accounted for in the claimant’s RFC). Nevertheless, 

because the ALJ’s sequential evaluation, including the RFC assessment, adequately considered 

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the effects of all of plaintiff’s alleged symptoms, any purported error at step two was harmless. 

Burch, 400 F.3d at 682-83. The ALJ’s decision is affirmed as to this issue. 

III. Duty to Develop the Record 

Plaintiff argues the ALJ should have “order[ed] a psychological evaluation” because his 

attorney requested one “[m]ore than a year prior to the hearing.” Pl.’s Opening Br. 14. The 

claimant bears the burden of proving the existence or extent of an impairment, such that the 

ALJ’s limited “duty to develop the record further is triggered only when there is ambiguous 

evidence or when the record is inadequate to allow for proper evaluation of the evidence.” Mayes 

v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) (citation omitted). 

Here, neither the ALJ nor any medical source found the record to be ambiguous or 

inadequate for evaluation. Rather, as addressed in Sections I and II, plaintiff simply neglected to 

introduce any medical evidence regarding his mental functioning due, in large part, to his failure 

to seek treatment. See 20 C.F.R. §§ 404.1512(c), 416.912(c) (claimant bears the burden of 

producing medical evidence concerning the severity of the alleged impairments). 

To the extent plaintiff points to his indigence, the record before the Court reveals that he 

was insured during the relevant time period. Tr. 58. In any event, there is no indication that 

plaintiff looked into no- or low-cost mental health counseling options. Furthermore, despite 

having the opportunity to do so, plaintiff’s counsel did not solicit specific testimony regarding 

plaintiff’s mental impairment or any functional limitations associated therewith, or reiterate his 

request for a consultative examination, at the hearing. Tr. 44-70. 

Likewise, to the extent plaintiff speculates regarding the existence of undiagnosed 

“cognitive or intellectual limitations” based on one provider’s comment that “[h]e does not 

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understand surgery,” the record before the Court demonstrates plaintiff graduated from high 

school pursuant to a regular curriculum. Tr. 215. Additionally, many of plaintiff’s other 

providers noted that he adequately understood their instructions and was socially appropriate. 

See, e.g., Tr. 279, 284, 353; see also Tr. 380 (plaintiff “demonstrates normal behavior [and] the 

ability and willingness to learn”). As such, this isolated, and somewhat vague, reference does not 

support the need for a consultative examination, especially in light of plaintiff’s coterminous 

drug use. In sum, the ALJ’s duty to more fully develop the record was not triggered. 

IV. RFC and Step Five Finding 

Plaintiff contends the ALJ’s RFC and step five finding are erroneous because they do not 

adequately account for the limitations described in his testimony or the reports of Drs. Allison 

and Banerjee. The RFC is the most a claimant can do despite his limitations. 20 C.F.R. §§ 

404.1545, 416.945. In determining the RFC, the ALJ must consider limitations imposed by all of 

a claimant’s impairments, even those that are not severe, and evaluate “all of the relevant 

medical and other evidence,” including the claimant’s testimony. SSR 96-8p, available at 1996 

WL 374184. Only limitations supported by substantial evidence must be incorporated into the 

RFC and, by extension, the dispositive hypothetical question posed to the VE. Osenbrock v. 

Apfel, 240 F.3d 1157, 1163-65 (9th Cir. 2001).

 As discussed herein, the ALJ appropriately weighed the evidence from plaintiff, Dr. 

Allison, and Dr. Banerjee. Accordingly, plaintiff’s argument, which is contingent upon a finding 

of harmful error in regard to the aforementioned issues, is without merit. Bayliss v. Barnhart, 427 

F.3d 1211, 1217-18 (9th Cir. 2005). The ALJ’s RFC and step five finding are upheld. 

Case 6:16-cv-00311-JR Document 22 Filed 03/24/17 Page 16 of 17
Page 17 - OPINION AND ORDER 

CONCLUSION

 For the reasons stated above, the Commissioner’s decision is AFFIRMED and this case is 

DISMISSED. 

IT IS SO ORDERED.

DATED this 24th day of March 2017. 

 s/Jolie A. Russo 

JOLIE A. RUSSO 

United States Magistrate Judge 

Case 6:16-cv-00311-JR Document 22 Filed 03/24/17 Page 17 of 17