                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 04 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



VICTOR H. MONDRAGON,                             No. 09-35408

             Plaintiff - Appellant,              D.C. No. 3:08-cv-00134-MA

  v.
                                                 MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
Social Security Administration,

             Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Oregon
                    Malcolm F. Marsh, District Judge, Presiding

                           Submitted February 2, 2010 **
                               Seattle, Washington

Before: RYMER, GOULD and BYBEE, Circuit Judges.

       Victor Mondragon appeals the district court’s judgment affirming the

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




        *
             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).
Disability Insurance and Supplemental Security Income under Titles II and XVI of

the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

      Mondragon argues that the Administrative Law Judge (“ALJ”) erred at step

two by finding that he was not severely impaired by depression and chronic pain

disorder.1 Any alleged error at step two was harmless because step two was

decided in Mondragon’s favor with regard to other ailments. See Burch v.

Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). Mondragon argues that this became

prejudicial error at step four because the ALJ did not consider Mondragon’s

depression or chronic pain in determining his residual functional capacity (“RFC”).

We disagree. The ALJ specifically stated that he was considering “all symptoms

and the extent to which these symptoms can reasonably be accepted as consistent

with the objective medical evidence and other evidence.” The ALJ found that

Mondragon’s “mental conditions are medically indeterminable or non-severe”

based on Dr. Lyon’s finding that Mondragon was malingering, various reports that

Mondragon exaggerated his symptoms to his doctors, and Dr. Smith’s opinion that

Mondragon did not have a major psychiatric condition that would prevent him

from returning to work.



      1
            The parties are familiar with the factual and procedural history of this
case and we do not recount it in detail here.

                                          2
         The ALJ’s RFC determination is supported by substantial evidence. An

RFC is inherently an assessment of a claimant’s limitations resulting from his

medically determinable impairments, and Mondragon did not have any medically

determinable impairment that would limit his ability to sustain work activity on a

regular and continuing basis. Thus, any failure on the part of the ALJ to

specifically discuss Mondragon’s ability to sustain this kind of work activity was at

most harmless error. Cf. Reddick v. Chater, 157 F.3d 715, 724–25 (9th Cir. 1998)

(holding ALJ must consider ability to sustain regular work activity where claimant

was impaired by Chronic Fatigue Syndrome). Mondragon was responsible for

providing the evidence used to make the RFC determination, 20 C.F.R. §§

404.1545(a)(3), 416.945(a)(3), and the ALJ was not required to credit

Mondragon’s subjective complaints on this issue without objective evidence to

support his claims, see Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989).

The ALJ also properly assessed Mondragon’s reaching limitations and adopted the

opinion of Dr. Johnson that Mondragon was limited to no overhead reaching with

his right upper extremity. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir.

2005).

         The ALJ gave specific and legitimate reasons, supported by substantial

evidence in the record, for rejecting the contradicted opinion of Dr. Czarnecki, on


                                           3
which there was competing medical evidence. See Lester v. Chater, 81 F.3d 821,

830 (9th Cir. 1995). The ALJ found Dr. Czarnecki’s opinion was inconsistent with

most of the medical evidence, including a 2003 physical capacity evaluation, a

2004 residual functional capacity assessment, and two nerve conduction studies.

See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004)

(holding inconsistency with medical evidence a specific and legitimate reason for

rejecting treating physician’s opinion). Any alleged over-reliance by the ALJ on

the infrequency of Mondragon’s visits to Dr. Czarnecki was at most harmless error.

See Stout v. Comm’r, 454 F.3d 1050, 1055 (9th Cir. 2006).

      The ALJ’s findings regarding Mondragon’s allegations of depression and

chronic pain disorder are supported by substantial evidence. The ALJ discussed

the relevant medical evidence related to these alleged impairments and determined

that any depression or chronic pain disorder did not impose functional limitations

in excess of Mondragon’s physical impairments. To the extent the ALJ did not

discuss specific statements made by Dr. Wicher, Dr. Miller, and Dr. Czarnecki, the

ALJ was not required to discuss those statements when their substance was

adequately represented by the evidence the ALJ did discuss. See Vincent v.

Heckler, 739 F.2d 1393, 1394–95 (9th Cir. 1984) (per curiam) (holding that

evidence that is not significant or probative need not be explicitly discussed by the


                                          4
ALJ). Nor does the new evidence in the form of Dr. Rosenbaum’s diagnoses of

functional overlay and somatoform disorder—which were made after the hearing

before the ALJ—change our analysis. Dr. Rosenbaum’s opinion is entirely

consistent with the medical evidence that was in the record before the ALJ.

Mondragon has therefore not demonstrated a “reasonable possibility” that the

outcome of his hearing would have been different had Dr. Rosenbaum’s opinion

been added to the mix. Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001).

      The ALJ also properly considered and credited the lay testimony of

Mondragon’s wife. The ALJ amply discussed the two third-party reports she

submitted. The ALJ was not required to discuss every statement made by

Mondragon’s wife to demonstrate that her observations had been properly

considered and credited. See Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006,

1012 (9th Cir. 2003) (holding that an ALJ need not discuss “every piece of

evidence” in order to demonstrate that the ALJ did not “selectively analyze” the

evidence).

      Finally, the ALJ’s finding that Mondragon could perform his past relevant

work is supported by substantial evidence and is free from legal error. The ALJ’s

hypothetical to the vocational expert correctly contained all limitations that the

ALJ found were supported by substantial evidence. See Magallanes, 881 F.2d at


                                           5
756–57. In determining that Mondragon could perform his past relevant work, the

ALJ assessed Mondragon’s RFC, found that Mondragon’s past relevant work as a

cannery worker is “rated at the light exertional level and is unskilled,” and found

that Mondragon could perform that job with his current RFC. Those findings

satisfy the requirements of Social Security Ruling (“SSR”) 82-62. See Pinto v.

Massanari, 249 F.3d 840, 845 (9th Cir. 2001) (citing SSR 82-62 and holding that

the ALJ must find claimant’s RFC, the physical and mental demands of his or her

past relevant work, and the relation of his or her RFC to the past work). The ALJ

correctly considered the Dictionary of Occupational Titles (“DOT”) definition of

“cannery worker” and the testimony of the vocational expert and found no conflict

between them.2 See id. at 845–46 (observing that “the best source for how a job is

generally performed” is usually the DOT, and that vocational expert testimony can

also be considered in the step four analysis).

      AFFIRMED.




      2
        Mondragon argues that the DOT definition of cannery worker states that
the job requires reaching “2/3” of the time, but this is actually part of a database
category for the Guide for Occupational Exploration, and is not part of the DOT
occupational definition. See DOT Appendix C, available at
http://www.oalj.dol.gov/PUBLIC/DOT/REFERENCES/DOTAPPC.HTM.

                                           6
