                                                                                       FILED
                               NOT FOR PUBLICATION
                                                                                       NOV 16 2017
                       UNITED STATES COURT OF APPEALS                              MOLLY C. DWYER, CLERK
                                                                                     U.S. COURT OF APPEALS


                                FOR THE NINTH CIRCUIT


 JOSEPH P. CASTRO,                                      No . 16-15644

                Plaintiff -Appellant,
                                                        D.C. No. 1:14-cv-01434-JLT
 v.

 NANCY A. BERRYHILL, Acting                             MEMORANDUM*
 Commissioner of Social Security,

                Defendant-Appellee


                      Appeal from the United States District Court
                          for the Eastern District of California
                    Jennifer L. Thurston, Magistrate Judge, Presiding

                             Submitted November 14, 2017**
                                San Francisco, California

Before: CLIFTON and FRIEDLAND, Circuit Judges, and SESSIONS ***, 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 William K. Sessions III, District Judge for the U.S. District Court
for the District of Vermont, sitting by designation.
      Joseph Castro is seeking disability insurance benefits and supplemental

social security income on the basis of chronic back pain, a heart condition, and

depression. An ALJ denied Mr. Castro benefits, and on judicial review the district

court affirmed. We review the district court’s order de novo, and the ALJ’s

decision for substantial evidence and legal error. Mayes v. Massanari, 276 F.3d

453, 458-59 (9th Cir. 2001).

      At the administrative hearing, Mr. Castro offered the ALJ recent medical

documentation from a treating physician. The ALJ agreed to accept the

documentation, but failed to include it in the administrative record. The

Commissioner concedes that the ALJ erred by failing to include the documents in

the record. We will not reverse unless the error was harmful. Molina v. Astrue,

674 F.3d 1104, 1111 (9th Cir. 2012) (“[W]e may not reverse an ALJ’s decision on

account of an error that is harmless.”). “[T]he burden of showing that an error is

harmful normally falls upon the party attacking the agency’s determination.”

Shinseki v. Sanders, 556 U.S. 396, 409 (2009).

      Mr. Castro testified about his recent medical care, and the ALJ considered

that testimony in his written decision. Furthermore, aside from a diagnosis of

depression, the recent medical documentation was largely consistent with the rest

of the administrative record, including the hearing testimony. With respect to Mr.


                                          2
Castro’s depression, the medical notes suggested diminished concentration, energy,

and interest generally, without comment about the extent or severity of those

issues. The diagnosis therefore did not undermine the findings of a state agency

psychologist who, after conducting a full examination, found no work-related

limitations stemming from psychological issues. We therefore conclude that the

ALJ’s failure to incorporate the recent medical documentation into the

administrative record was harmless.

      Mr. Castro represented to the ALJ that, including the recent medical

documentation, the record was complete. The ALJ had no duty to further develop

the record.

      Finally, substantial evidence supported the ALJ’s determination that Mr.

Castro’s depression was not a severe impairment. An impairment or combination

of impairments is not severe if it does not significantly limit a claimant’s physical

or mental ability to do basic work activities. Webb v. Barnhart, 433 F.3d 683, 686

(9th Cir. 2005). As discussed above, there was little in the written documentation

to support a finding that depression impaired his ability to perform basic work

activities. Moreover, Mr. Castro did not mention depression or other mental

health impediments in his testimony about his own symptoms.

AFFIRMED.


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