                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            DEC 16 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


LUCY A. STEPHENS,                                No.   15-15253

              Plaintiff-Appellant,               D.C. No.
                                                 2:13-cv-00096-JAD-PAL
 v.

CAROLYN W. COLVIN, Commissioner                  MEMORANDUM*
of Social Security Administration,

              Defendant-Appellee.


                    Appeal from the United States District Court
                              for the District of Nevada
                    Jennifer A. Dorsey, District Judge, Presiding

                          Submitted December 13, 2016**
                             San Francisco, California

Before: O’SCANNLAIN, GOULD, and M. SMITH, Circuit Judges.

      Lucy Stephens appeals the district court’s judgment affirming the

Commissioner of Social Security’s denial of her applications for social security

disability insurance benefits and supplemental security income. Stephens argues

      *
             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).
that: (1) the administrative law judge (ALJ) erred by not evaluating all of her

severe impairments at step two and not incorporating nonexertional limitations in

her residual functional capacity (RFC) at step four; (2) the ALJ improperly

evaluated medical opinion evidence; (3) the ALJ improperly discounted the

credibility of her testimony; (4) the magistrate judge and the Commissioner

impermissibly engaged in post hoc rationalization; and (5) we should remand for

payment of benefits.

      We have jurisdiction pursuant to 28 U.S.C. § 1291. Reviewing the district

court’s decision de novo and the determination of the ALJ for substantial evidence,

Garrison v. Colvin, 759 F.3d 995, 1009–10 (9th Cir. 2014), we affirm.

      1.     Assuming the ALJ erred at step two by not addressing whether

Stephens’s chronic pain syndrome was a severe impairment, the error was

harmless. The ALJ considered the associated limitations in the RFC assessment at

step four. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). The ALJ’s RFC

assessment reflects that he considered any limitations posed by chronic pain

syndrome, and the record does not show evidence of functional limitations that the

ALJ did not consider. The ALJ did not err in failing to include Stephens’s fatigue

as a severe impairment because it was not supported by the medical record. See 20

C.F.R. § 416.908; Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005).


                                          2
      2.     The ALJ gave specific and legitimate reasons that are supported by

substantial evidence for the weight he accorded to medical opinions from

Stephens’s treating, examining, and non-examining physicians. See Van Nguyen v.

Chater, 100 F.3d 1462, 1466 (9th Cir. 1996). The ALJ sufficiently explained why

he gave substantial weight to Dr. Dhaliwal’s assessment, which was based on Dr.

Sherman’s examination and Stephens’s cumulative medical records, but discounted

Dr. Elkanich’s opinion regarding Stephens’s pre-surgery limitations and Dr. Witt’s

opinion that did not set forth specific work-related functional limitations. None of

Stephens’s treating physicians gave an opinion on the ultimate issue of disability,

and no physician opined that she was wholly precluded from working.

      3.     The ALJ did not err in finding Stephens less than credible as to the

intensity, persistence, and limiting effects of her symptoms to the extent that her

testimony was inconsistent with the ALJ’s RFC assessment. The ALJ provided

“specific, clear, and convincing reasons” in finding Stephens’s testimony not fully

credible. Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014). The ALJ found

Stephens’s symptom testimony inconsistent with medical records showing mild

findings, her reported improvement after a cervical spine surgery, the opinion that

Stephens’s pain was well controlled by medication, and the opinion of a medical

examiner. See Parra v. Astrue, 481 F.3d 742, 750–51 (9th Cir. 2007).


                                           3
      4.     Stephens’s other arguments, that the magistrate judge and the

Commissioner engaged in post hoc rationalization and that she is entitled to

remand for payment of benefits, are without merit.

      We conclude that the ALJ’s findings are supported by substantial evidence

in the record, and any errors are harmless.

      AFFIRMED.




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