Kevin Loader v. Nancy Berryhill ( 2018 )


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  •                                                                             FILED
    NOT FOR PUBLICATION
    JAN 24 2018
    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    KEVIN LOADER,                                    No.    16-35229
    Plaintiff-Appellant,               D.C. No. 6:15-cv-00038-JTJ
    v.
    MEMORANDUM*
    NANCY A. BERRYHILL, Acting
    Commissioner Social Security,
    Defendant-Appellee.
    Appeal from the United States District Court
    for the District of Montana
    John T. Johnston, Magistrate Judge, Presiding
    Argued and Submitted December 6, 2017
    Seattle, Washington
    Before: O’SCANNLAIN, TALLMAN, and WATFORD, Circuit Judges.
    Kevin Loader appeals the district court’s order affirming the Social Security
    Administration’s denial of his application for disability benefits. Because the facts
    are known to the parties, we repeat them only as necessary to explain our decision.
    I
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    The administrative law judge (ALJ) did not err in finding that Loader’s
    depression was a medically determinable but not “severe” impairment at Step 2 of
    the five-step sequential procedure. See generally 20 C.F.R. §§ 404.1520, 416.920.
    But even if that determination were made in error, it would be harmless, because
    Loader prevailed at Step 2—and his case proceeded to the remaining steps—on the
    basis of other severe impairments. Once past Step 2, the ALJ was required to
    consider Loader’s depression as a medically determinable impairment, even if it
    was not found to be severe. 20 C.F.R. §§ 404.1545(a)(2); 416.945(a)(2). Thus,
    once Loader prevailed at Step 2, it made no difference for the ALJ’s ensuing
    analysis whether his medically determinable depression was previously considered
    “severe.” See Buck v. Berryhill, 
    869 F.3d 1040
    , 1049 (9th Cir. 2017).
    II
    The ALJ did err, however, by failing to consider the limitations imposed by
    Loader’s depression when assessing his residual functional capacity (RFC), and
    thereafter when examining the vocational expert. As stated, at Step 2, the ALJ
    found Loader’s depression to be a “medically determinable mental impairment.”
    The ALJ was therefore required to consider such impairment in assessing Loader’s
    RFC. 20 C.F.R. §§ 404.1545(a)(2); 416.945(a)(2); 
    Buck, 869 F.3d at 1049
    . The
    ALJ failed, however, even to mention Loader’s depression or mental impairments
    2
    when assessing his RFC, and the RFC itself says nothing at all about such
    impairments or their effects. Likewise, the ALJ failed to mention any such
    impairment in the hypothetical questions it posed to the vocational expert.
    We cannot conclude that the ALJ’s failure to consider Loader’s mental
    impairments when assessing his RFC or when questioning the vocational expert
    was harmless. Cf. Robbins v. Soc. Sec. Admin., 
    466 F.3d 880
    , 885 (9th Cir. 2006)
    (error is harmless if it is “clear from the record that [the] error was inconsequential
    to the ultimate nondisability determination” (internal quotation marks omitted)).
    Indeed, at the hearing before the ALJ on Loader’s first application for disability
    benefits, the vocational expert testified that the addition of “marked limitations in
    the ability to persist, pace, or concentrate throughout an eight-hour day” to
    Loader’s physical impairments may have changed the expert’s opinion as to the
    work that Loader could perform. Such limitations are similar to the mild mental
    limitations that the ALJ found to be associated with Loader’s depression, and thus
    express consideration of such impairments may have impacted the ALJ’s ultimate
    disability determination.
    III
    The ALJ did not err in assessing Loader’s physical limitations in the RFC
    and or in his examination of the vocational expert. The ALJ’s assessment of
    3
    Loader’s physical limitations is supported by substantial evidence in the record,
    including both medical evidence and evidence related to Loader’s activities.
    A
    The ALJ’s adverse assessment of Loader’s credibility was supported by
    “specific, clear and convincing reasons.” Trevizo v. Berryhill, 
    871 F.3d 664
    , 678
    (9th Cir. 2017) (internal quotation marks omitted). Indeed, the ALJ cited
    numerous pieces of evidence in the record that clearly contradicted Loader’s
    testimony as to the extent of his impairments, including objective medical evidence
    such as diagnostic test results, evidence that Loader experienced some relief from
    conservative and routine care, and evidence that Loader participated in various
    activities that contradicted his supposed physical limitations.1 Such contradictions
    are sufficient to support the ALJ’s credibility determination. See generally
    Ghanim v. Colvin, 
    763 F.3d 1154
    , 1163–64 (9th Cir. 2014) (discussing ALJ
    credibility determinations).
    1
    Loader’s complaint that some of the events cited by the ALJ occurred
    before the alleged onset date of his disability is misplaced. As the ALJ explained,
    Loader’s alleged onset date had “no clinical significance,” but was instead simply
    the day after Loader’s prior application for benefits based on the exact same
    alleged disabilities was denied. It was thus Loader’s burden to show that his
    condition had materially worsened since his previous claim was denied. See Fair
    v. Bowen, 
    885 F.2d 597
    , 600 (9th Cir. 1989). Because evidence such as diagnostic
    images suggested that Loader’s condition had not materially worsened, Loader’s
    prior activities remained relevant to illustrating the extent of his impairments.
    4
    B
    The ALJ likewise provided specific, clear, and convincing reasons to reject
    Dr. Meyer’s assessment of Loader’s physical limitations. See Bayliss v. Barnhart,
    
    427 F.3d 1211
    , 1216 (9th Cir. 2005). Once again, those reasons included several
    contradictions between Dr. Meyer’s opinion as to Loader’s physical capabilities
    and physical activities that Loader actually performed.
    C
    Although the ALJ failed explicitly to consider and provide germane reasons
    for rejecting evidence from every non-medical source, such evidence was merely
    corroborative of the impairments described by Loader and Dr. Meyer. Because the
    ALJ’s well-supported reasons for rejecting Loader’s and Dr. Meyer’s testimony
    apply with equal force to the testimony of the non-medical witnesses, the ALJ’s
    failure explicitly to consider the evidence from every such witness was harmless.
    See Molina v. Astrue, 
    674 F.3d 1104
    , 1117–22 (9th Cir. 2012).
    IV
    For the foregoing reasons, the decision of the district court is AFFIRMED
    in part, REVERSED in part, and this case is REMANDED to the district court
    with instructions to remand to the Commissioner for further proceedings. On
    remand, the ALJ is directed to re-assess Loader’s RFC, including all of Loader’s
    5
    relevant medically determinable impairments, both physical and mental, and to re-
    assess its Steps 4 and 5 conclusions in light of the complete RFC.
    The parties shall bear their own costs on appeal.
    6
    FILED
    Loader v. Berryhill, No. 16-35229
    JAN 24 2018
    WATFORD, Circuit Judge, concurring in part and dissenting in part:       MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    I would reverse across the board. I think the ALJ erred in determining that
    Mr. Loader’s testimony was not credible, and in giving no weight to Dr. Meyer’s
    April 21, 2014, opinion statement. The objective medical evidence supports, rather
    than contradicts, Mr. Loader’s complaints about the extent of his back pain;
    indeed, the medical evidence confirms that his back pain “persists and is fairly
    debilitating.” Dr. Meyer’s opinion statement is fully consistent with his treatment
    notes and the record as a whole. As a result, the ALJ had no basis for disregarding
    the views of Dr. Meyer, who was not only Mr. Loader’s treating physician but also
    the only medical doctor whose opinions are included in the record.