                                                                            FILED
                           NOT FOR PUBLICATION                              MAR 22 2010

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




                            FOR THE NINTH CIRCUIT



GALE GUNDERSON,                                  No. 09-35566

             Plaintiff - Appellant,              D.C. No. 3:08-cv-00183-BR

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

             Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Oregon
                     Anna J. Brown, District Judge, Presiding

                       Argued and Submitted March 5, 2010
                                Portland, Oregon

Before: PAEZ, TALLMAN, and M. SMITH, Circuit Judges.

       Gale Gunderson appeals the district court’s judgment affirming the

Commissioner of Social Security’s denial of Gunderson’s application for disability

insurance benefits under Title II of the Social Security Act and for supplemental

security income under Title XVI. Because the parties are familiar with the facts


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
and procedural history of this case, we will discuss them only as necessary to

explain our decision. We have jurisdiction under 28 U.S.C. § 1291.

      First, Gunderson argues that the administrative law judge (ALJ) failed to

properly adhere to the procedures and apply the “special technique” set forth in 20

C.F.R. § 404.1520a. The “special technique” is used by “adjudicators to assess an

individual’s limitations and restrictions from a mental impairment[] in categories

identified in the ‘paragraph B’ and ‘paragraph C’ criteria of the adult mental

disorders listings.” SSR 96-8p, 1996 WL 374184, at *4; see also 20 C.F.R. pt.

404, subpt. P, app. 1, § 12.00 et seq. The “special technique” requires the

adjudicator to determine whether the claimant has “a medically determinable

mental impairment[],” 20 C.F.R. § 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). Further, the

adjudicator must document the application of the special technique in the decision.

The regulations explicitly provide that the adjudicator’s decision “must include a

specific finding as to the degree of limitation in each of the [four] functional

areas.” Id. § 404.1520a(e)(2) (emphasis added).




                                           2
      In Gutierrez v. Apfel, we held that “where there is a colorable claim of

mental impairment,” failure to adhere to section 404.1520a “requires remand to the

Social Security Administration.”1 199 F.3d 1048, 1051 (9th Cir. 2000). In this

case, Gunderson raised a “colorable claim” of mental impairment. The ALJ herself

found at step two that Gunderson’s anxiety disorder qualified as a severe mental

impairment. The ALJ, however, failed to make a specific finding as to each of the

functional areas, as required under section 404.1520a. As for the first three

functional areas, the ALJ merely stated that Gunderson did not have any “marked”

limitations. But the regulations required the ALJ to identify and record where

Gunderson’s limitations exactly fell along the following five-point scale—none,

mild, moderate, marked, and extreme—for each of those functional areas. 20

C.F.R. § 404.1520a(c)(4).

      We acknowledge that in certain circumstances, the failure to explicitly use

the special technique may constitute harmless error. In this case, however, after

having reviewed the record and the totality of the ALJ’s findings, it is not clear

whether the ALJ would have arrived at the same conclusion regarding Gunderson’s

residual functional capacity (RFC) to perform work had the ALJ adhered to the



      1
        Although Gutierrez dealt with the prior version of section 404.1520a, the
current version, although different, imposes similar obligations on the ALJ.

                                           3
requirements of section 404.1520a. Accordingly, we remand this matter so the

ALJ can make specific findings as to the degree of Gunderson’s limitations in each

of the paragraph B functional areas as required by section 404.1520a and to

proceed with the remainder of the five-step sequential analysis in light of those

findings.2

      Second, Gunderson argues that the ALJ committed a legal error by finding at

step two that Gunderson’s anxiety disorder and hepatitis were “severe” and then

failing to incorporate the limitations resulting from those impairments into the

ALJ’s final construction of Gunderson’s RFC at steps four and five. Gunderson

fails to appreciate that “the step-two inquiry is a de minimis screening device to

dispose of groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir.

1996). “The step two and step five determinations require different levels of

severity of limitations such that the satisfaction of the requirements at step two

does not automatically lead to the conclusion that the claimant has satisfied the

requirements at step five.” Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007).

Nevertheless, the ALJ is not required, as a matter of law, to include all the



      2
        At oral argument, counsel for Gunderson conceded that even if the ALJ
fully complies with section 404.1520a, Gunderson cannot prevail at step three.
Therefore, upon remand, the ALJ is required to perform the special technique
solely for the purpose of the ALJ’s analysis at steps four and five.

                                           4
limitations from the impairments the ALJ deems to be severe at step two in the

ALJ’s final RFC analysis. As a result, in this case, the ALJ did not commit a legal

error by omitting functional limitations related to Gunderson’s anxiety and

hepatitis from the RFC simply because she determined they were severe for

purposes of step two. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219,

1228-29 (9th Cir. 2009) (rejecting the petitioner’s argument that the ALJ failed to

account for her mental disorder, which the ALJ had found to be severe at step two,

in the final construction of her RFC, and noting the lack of “authority to support

the proposition that a severe mental impairment must correspond to limitations on

a claimant’s ability to perform basic work activities”). Upon remand, after

complying with section 404.1520a, the ALJ may find it necessary to revise her

prior RFC evaluation to reflect any limitations from Gunderson’s anxiety disorder.

But that is for the ALJ to decide on remand.

      Third, Gunderson argues that the ALJ erred by failing to properly consider

the medical opinions of Dr. William Trueblood. However, Dr. Trueblood

conducted a psychological evaluation of Gunderson in December 1998, nearly two

years before the alleged onset date of Gunderson’s disabilities. Because “[m]edical

opinions that predate the alleged onset of disability are of limited relevance,”

Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008), the


                                           5
ALJ did not err in according less weight to the opinions of Dr. Trueblood. See

Burkhart v. Bowen, 856 F.2d 1335, 1340 n.1 (9th Cir. 1988) (concluding that the

ALJ correctly rejected medical evidence because it predated the relevant time

period).

      Finally, Gunderson argues that the ALJ erred by not considering his

individual reactions to the demands of work-related stress in accordance with SSR

85-15. This court has held that “SSR 85-15 provides guidance only for cases in

which the claimant asserts ‘solely nonexertional impairments.’” Roberts v.

Shalala, 66 F.3d 179, 183 (9th Cir. 1995) (quoting SSR 85-15). Because

Gunderson asserts that his impairments include the exertional imairment of chronic

back pain, SSR 85-15 does not apply. See Sandgathe v. Chater, 108 F.3d 978,

980-81 (9th Cir. 1997) (holding SSR 85-15 was inapplicable because the claimant

had exertional and nonexertional impairments).

      Each side to bear its own costs on appeal.

AFFIRMED IN PART, REVERSED IN PART, VACATED, AND
REMANDED WITH INSTRUCTIONS.




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