NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 16 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
SCOTT LEROY DATTILO, No. 18-15297
Plaintiff-Appellant, D.C. No. 5:16-cv-05552-HRL
v. MEMORANDUM* NANCY A. BERRYHILL, Acting Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court for the Northern District of California Howard R. Lloyd, Magistrate Judge, Presiding
Submitted May 14, 2019** San Francisco, California
Before: WALLACE and IKUTA, Circuit Judges, and MOLLOY,*** District Judge.
* 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 Donald W. Molloy, United States District Judge for the District of Montana, sitting by designation. Scott Dattilo appeals from the district court’s decision affirming the
administrative law judge’s (ALJ) denial of his application for disability insurance
and supplemental security income benefits. We review the denial de novo and
reverse only if the denial “contains legal error or is not supported by substantial
evidence.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (quoting
Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007)). We will not reverse if the ALJ’s
error was “inconsequential to the ultimate nondisability determination.” Id.
(quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)). We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. Dattilo challenges the ALJ’s conclusion that his anxiety and depression
are nonsevere. For an impairment to be “severe,” it must significantly limit the
claimant’s physical or mental ability to do basic work activities. 20 C.F.R. §
404.1520(c); see also 20 C.F.R. § 416.922(b) (defining basic work activities as the
abilities and aptitudes necessary to do most jobs). Substantial evidence—including
medical records submitted by examining and non-examining physicians—supports
the ALJ’s conclusion. In particular, Dr. Maria Acenas, the psychiatric consultative
examiner, indicated that Dattilo’s mental status examination was normal with the
exception of a depressed mood that could benefit from some psychotherapy. From
her examination, she concluded that Dattilo “will be able to perform work on a
consistent basis, maintain a regular attendance and finish normal workweek” and
2 “will likewise also be able to deal with the usual stress encountered in a
competitive workplace.” Further, even if the ALJ erred in concluding that Dattilo's
mental limitations were nonsevere, any error is harmless because the ALJ
considered Dattilo’s mental limitations when assessing his residual functional
capacity. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007).
2. Dattilo argues that the ALJ failed to consider the combined impact of his
physical and mental impairments. The ALJ is required to consider “all [the
claimant’s] symptoms, including pain, and the extent to which [the claimant’s]
symptoms can reasonably be accepted as consistent with the objective medical
evidence and other evidence.” 20 C.F.R. § 404.1529; see Beecher v. Heckler, 756
F.2d 693, 694 (9th Cir. 1985) (“A claimant’s illnesses must be considered in
combination and must not be fragmentized in evaluating their effects”). As the
district court correctly described, the ALJ “thoroughly considered and accurately
summarized the evidence, including Dattilo’s medical history, all medical evidence
as to both plaintiff’s physical impairments and mental status, and statements about
how plaintiff’s symptoms affect him.”
3. Dattilo argues that the ALJ failed to follow the “special technique” under
20 C.F.R. § 404.1520a(a), applicable when evaluating severity of mental
impairments. The “special technique” requires the ALJ to determine whether the
claimant has “a medically determinable mental impairment[],” 20 C.F.R. §
3 404.1520a(b)(1), and if so, to “rate the degree of functional limitation resulting
from the impairment[]” in four specific functional areas—activities of daily living;
social functioning; concentration, persistence, or pace; and episodes of
decompensation, id. § 404.1520a(b)(2), (c). The ALJ’s decision “must include a
specific finding as to the degree of limitation in each of the [four] functional
areas.” Id. § 404.1520a(e)(4). Here, the ALJ provided a detailed description
explaining the determinations of “no” or “mild” degrees of functional limitations in
the four areas and properly applied the special technique in assessing Dattilo’s
mental impairments.
4. Dattilo challenges the ALJ’s finding that the record did not support his
testimony regarding the severity of his symptoms and limitations. “An ALJ cannot
be required to believe every allegation of disabling pain, or else disability benefits
would be available for the asking.” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.
1989). “[T]he claimant ‘must produce objective medical evidence of an
underlying impairment’ or impairments that could reasonably be expected to
produce some degree of symptom.” Tommasetti, 533 F.3d at 1039 (quoting
Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). If the claimant does so,
and there is no affirmative evidence of malingering, then the ALJ can reject the
claimant’s testimony as to the severity of the symptoms “only by offering specific,
clear and convincing reasons for doing so.” Id. (quoting Smolen, 80 F.3d at 1281).
4 The ALJ properly discredited Dattilo’s testimony, explaining that although
his impairments could reasonably be expected to cause the alleged symptoms,
testimony on the severity of his symptoms were exaggerated in light of the
evidence. In so concluding, the ALJ highlighted the discrepancy between
subjective testimony and objective medical evidence. For example, the diagnostic
imaging showed only mild impairment; Dattilo’s chiropractor indicated overall
improvement; Dr. Mirza’s examination indicated no acute distress, no evidence of
radiating pain, intact sensation in upper extremities, normal motor strength, normal
gait, and no acute distress; and an emergency room visit indicated similar results.
Additionally, the ALJ relied on Dattilo’s history of conservative treatment, which
“is sufficient to discount a claimant's testimony regarding severity of an
impairment."” Parra v.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 16 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
SCOTT LEROY DATTILO, No. 18-15297
Plaintiff-Appellant, D.C. No. 5:16-cv-05552-HRL
v. MEMORANDUM* NANCY A. BERRYHILL, Acting Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court for the Northern District of California Howard R. Lloyd, Magistrate Judge, Presiding
Submitted May 14, 2019** San Francisco, California
Before: WALLACE and IKUTA, Circuit Judges, and MOLLOY,*** District Judge.
* 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 Donald W. Molloy, United States District Judge for the District of Montana, sitting by designation. Scott Dattilo appeals from the district court’s decision affirming the
administrative law judge’s (ALJ) denial of his application for disability insurance
and supplemental security income benefits. We review the denial de novo and
reverse only if the denial “contains legal error or is not supported by substantial
evidence.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (quoting
Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007)). We will not reverse if the ALJ’s
error was “inconsequential to the ultimate nondisability determination.” Id.
(quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)). We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. Dattilo challenges the ALJ’s conclusion that his anxiety and depression
are nonsevere. For an impairment to be “severe,” it must significantly limit the
claimant’s physical or mental ability to do basic work activities. 20 C.F.R. §
404.1520(c); see also 20 C.F.R. § 416.922(b) (defining basic work activities as the
abilities and aptitudes necessary to do most jobs). Substantial evidence—including
medical records submitted by examining and non-examining physicians—supports
the ALJ’s conclusion. In particular, Dr. Maria Acenas, the psychiatric consultative
examiner, indicated that Dattilo’s mental status examination was normal with the
exception of a depressed mood that could benefit from some psychotherapy. From
her examination, she concluded that Dattilo “will be able to perform work on a
consistent basis, maintain a regular attendance and finish normal workweek” and
2 “will likewise also be able to deal with the usual stress encountered in a
competitive workplace.” Further, even if the ALJ erred in concluding that Dattilo's
mental limitations were nonsevere, any error is harmless because the ALJ
considered Dattilo’s mental limitations when assessing his residual functional
capacity. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007).
2. Dattilo argues that the ALJ failed to consider the combined impact of his
physical and mental impairments. The ALJ is required to consider “all [the
claimant’s] symptoms, including pain, and the extent to which [the claimant’s]
symptoms can reasonably be accepted as consistent with the objective medical
evidence and other evidence.” 20 C.F.R. § 404.1529; see Beecher v. Heckler, 756
F.2d 693, 694 (9th Cir. 1985) (“A claimant’s illnesses must be considered in
combination and must not be fragmentized in evaluating their effects”). As the
district court correctly described, the ALJ “thoroughly considered and accurately
summarized the evidence, including Dattilo’s medical history, all medical evidence
as to both plaintiff’s physical impairments and mental status, and statements about
how plaintiff’s symptoms affect him.”
3. Dattilo argues that the ALJ failed to follow the “special technique” under
20 C.F.R. § 404.1520a(a), applicable when evaluating severity of mental
impairments. The “special technique” requires the ALJ to determine whether the
claimant has “a medically determinable mental impairment[],” 20 C.F.R. §
3 404.1520a(b)(1), and if so, to “rate the degree of functional limitation resulting
from the impairment[]” in four specific functional areas—activities of daily living;
social functioning; concentration, persistence, or pace; and episodes of
decompensation, id. § 404.1520a(b)(2), (c). The ALJ’s decision “must include a
specific finding as to the degree of limitation in each of the [four] functional
areas.” Id. § 404.1520a(e)(4). Here, the ALJ provided a detailed description
explaining the determinations of “no” or “mild” degrees of functional limitations in
the four areas and properly applied the special technique in assessing Dattilo’s
mental impairments.
4. Dattilo challenges the ALJ’s finding that the record did not support his
testimony regarding the severity of his symptoms and limitations. “An ALJ cannot
be required to believe every allegation of disabling pain, or else disability benefits
would be available for the asking.” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.
1989). “[T]he claimant ‘must produce objective medical evidence of an
underlying impairment’ or impairments that could reasonably be expected to
produce some degree of symptom.” Tommasetti, 533 F.3d at 1039 (quoting
Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). If the claimant does so,
and there is no affirmative evidence of malingering, then the ALJ can reject the
claimant’s testimony as to the severity of the symptoms “only by offering specific,
clear and convincing reasons for doing so.” Id. (quoting Smolen, 80 F.3d at 1281).
4 The ALJ properly discredited Dattilo’s testimony, explaining that although
his impairments could reasonably be expected to cause the alleged symptoms,
testimony on the severity of his symptoms were exaggerated in light of the
evidence. In so concluding, the ALJ highlighted the discrepancy between
subjective testimony and objective medical evidence. For example, the diagnostic
imaging showed only mild impairment; Dattilo’s chiropractor indicated overall
improvement; Dr. Mirza’s examination indicated no acute distress, no evidence of
radiating pain, intact sensation in upper extremities, normal motor strength, normal
gait, and no acute distress; and an emergency room visit indicated similar results.
Additionally, the ALJ relied on Dattilo’s history of conservative treatment, which
“is sufficient to discount a claimant's testimony regarding severity of an
impairment."” Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007).
5. Dattilo argues that the ALJ violated his due process rights by misapplying
the Medical Vocational Guidelines (commonly referred to as “the grids”) at step
five. He identifies three errors: using the wrong age category in considering the
grids, finding that he could perform light work, and considering whether he had
transferable work skills.
First, “[f]or purposes of applying the grids, there are three age categories:
younger person (under age 50), person closely approaching advanced age (age 50-
54), and person of advanced age (age 55 or older).” Lockwood v. Comm’r Social
5 Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010) (citing 20 C.F.R. § 404.1563(c)–
(e)). If a claimant is “within a few days to a few months of reaching an older age
category,” an ALJ may consider using the older age category in certain cases, 20
C.F.R. § 404.1563(b), but the ALJ is not required to do so and need not explain
why an older age category was not used. Lockwood, 616 F.3d at 1069–71. The
ALJ is “required by regulation only to consider whether to use the older age
category.” Id. at 1069 (emphasis added). Here, the ALJ erred because it
considered age at the time of alleged disability onset (51 years old), not age at the
time of final decision (54 years old) as required. Russell v. Bowen, 856 F.2d 81, 84
(9th Cir. 1988). However, the error was harmless because Dattilo still fell into the
“approaching advanced age” category regardless of the age used, and the ALJ
considered using—but chose not to use—the older, “advanced age” category. See
Lockwood, 616 F.3d at 1069–71.
Second, “[l]ight work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. §
404.1567(b). The ALJ properly considered the medical evidence to support that
Dattilo could perform a reduced range of light work.
Third, the ALJ found that Dattilo possessed the transferrable skills
of “knowledge of building processes, materials and tools for construction,” and
that he could make a successful adjustment to other work as a general hardware
6 salesperson. Again, the ALJ’s reasoning was free of legal error and sufficiently
supported by the vocational expert’s testimony.
AFFIRMED.