Kevin Loader v. NANCY A. BERRYHILL, Acting Commissioner Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEVIN LOADER,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
No. 16-35229
D.C. No. 6:15-cv-00038-JTJ
MEMORANDUM*
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
FILED
JAN 24 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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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
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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
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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.
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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
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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.
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Loader v. Berryhill, No. 16-35229
WATFORD, Circuit Judge, concurring in part and dissenting in part:
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.
FILED
JAN 24 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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