                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 10 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

CASHELLA BENJAMIN,                              No.    16-16747

                Plaintiff-Appellant,            D.C. No. 1:15-cv-02995-NJV

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

                Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Northern District of California
                   Nandor J. Vadas, Magistrate Judge, Presiding

                          Submitted December 8, 2017**
                            San Francisco, California

Before: THOMAS, Chief Judge, and LUCERO*** and OWENS, Circuit Judges.

      Cashella Benjamin appeals from the district court’s judgment affirming the

Commissioner of Social Security’s denial of Benjamin’s application for


      *
             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 Carlos F. Lucero, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
supplemental security income under Title XVI of the Social Security Act. As the

parties are familiar with the facts, we do not recount them here. We affirm.

      We review the district court’s decision de novo, and the Commissioner’s

denial of benefits must be supported by substantial evidence and a correct

application of the law. Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690

(9th Cir. 2009) (noting that substantial evidence “is a highly deferential standard of

review”).

      The Commissioner’s determination at step two in the sequential evaluation

process is supported by substantial evidence. See 42 U.S.C. § 405(g); 20 C.F.R.

§ 416.920(a)(4)(ii), (c). The Administrative Law Judge (“ALJ”) properly relied on

the absence of medical evidence that Benjamin’s depression and anxiety caused

more than minimal limitations in her ability to perform basic work activities, and

were therefore not “severe.” Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005)

(“An impairment is not severe if it is merely ‘a slight abnormality (or combination

of slight abnormalities) that has no more than a minimal effect on the ability to do

basic work activities.’” (citation omitted)). Even if her doctors at the Schuman-

Liles Clinic constitute a “treating source” under Benton v. Barnhart, 331 F.3d

1030, 1035-39 (9th Cir. 2003), none of them opined that Benjamin had more than

minimal limitations in her ability to perform basic work activities. The ALJ had a

germane reason for giving “little weight” to the opinion of Ellen Vargas, a


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Licensed Clinical Social Worker, because it was inconsistent with the underlying

treatment notes. See Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1223-24 (9th

Cir. 2010) (noting that “other source” opinions, such as from social workers, are

not entitled to the same deference as acceptable medical sources, and the ALJ may

discount such opinions if it gives “germane” reasons for doing so (citations

omitted)). Further, even if Benjamin’s mental impairments met the twelve-month

duration requirement, substantial evidence supports that they did not cause more

than minimal limitations in her ability to perform basic work activities.1 See

20 C.F.R. §§ 416.909, 416.920(a)(4)(ii).

      Substantial evidence also supports the Commissioner’s determination at step

three that Benjamin’s depression and anxiety did not meet or equal a listed

impairment. See 42 U.S.C. § 405(g); 20 C.F.R. § 416.920(a)(4)(iii), (d). Contrary

to Benjamin’s contention, substantial evidence supports that her mental

impairments did not meet the criteria for Listing 12.06 (Anxiety Related

Disorders). 20 C.F.R. pt. 404, subpt. P, app. 1 (Dec. 2, 2013).

      In addition, substantial evidence supports the Commissioner’s determination

that Benjamin’s residual functional capacity sufficiently incorporated her mild


1
  Benjamin has waived her argument that the Commissioner violated her due
process rights and discriminated against her based on gender because she failed to
raise it in the district court. See Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir.
1997) (per curiam). Moreover, her argument is unpersuasive given that the
duration requirement is not dispositive here.

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mental limitations in concentration, persistence, or pace. See 20 U.S.C. § 405(g);

20 C.F.R. §§ 416.920(a)(4), (e), 416.945(a).

      Likewise, substantial evidence supports that the ALJ’s hypothetical to the

vocational expert sufficiently incorporated Benjamin’s mild mental limitations in

concentration, persistence, or pace. See Osenbrock v. Apfel, 240 F.3d 1157, 1165

(9th Cir. 2001) (holding that “[t]he omission of depression from the hypothetical

question is supported by substantial evidence in the record” because “[t]he most

recent medical evaluations by [the claimant’s] treating physician diagnosed [his]

depression as a mild impairment, which presented no significant interference with

the ability to perform basic work-related activities”).

      Finally, remand is not warranted based on the new medical evidence

Benjamin submitted to the Appeals Council after it issued its decision. If Brewes

v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1159-60 (9th Cir. 2012), applies,

this new evidence does not change that substantial evidence supports the

Commissioner’s decision. And, under 42 U.S.C. § 405(g), this new evidence is not

“material” because there is not a “reasonable possibility” that it would have altered

the Commissioner’s decision. Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir.

2001) (citation omitted).

      AFFIRMED.




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