NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 16 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

SCOTT LEROY DATTILO,                            No.    18-15297

                Plaintiff-Appellant,            D.C. No. 5:16-cv-05552-HRL

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

                Defendant-Appellee.

                  Appeal from the United States District Court
                     for the Northern District of California
                  Howard R. Lloyd, Magistrate Judge, Presiding

                             Submitted May 14, 2019**
                             San Francisco, California

Before: WALLACE and IKUTA, Circuit Judges, and MOLLOY,*** 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 Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
      Scott Dattilo appeals from the district court’s decision affirming the

administrative law judge’s (ALJ) denial of his application for disability insurance

and supplemental security income benefits. We review the denial de novo and

reverse only if the denial “contains legal error or is not supported by substantial

evidence.” Tommasetti v. Astrue, 

, 1038 (9th Cir. 2008) (quoting

Orn v. Astrue, 

, 630 (9th Cir. 2007)). We will not reverse if the ALJ’s

error was “inconsequential to the ultimate nondisability determination.” 

v. Soc. Sec. Admin., 

, 885 (9th Cir. 2006)). We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      1. Dattilo challenges the ALJ’s conclusion that his anxiety and depression

are nonsevere. For an impairment to be “severe,” it must significantly limit the

claimant’s physical or mental ability to do basic work activities. 20 C.F.R. §

404.1520(c); see also 20 C.F.R. § 416.922(b) (defining basic work activities as the

abilities and aptitudes necessary to do most jobs). Substantial evidence—including

medical records submitted by examining and non-examining physicians—supports

the ALJ’s conclusion. In particular, Dr. Maria Acenas, the psychiatric consultative

examiner, indicated that Dattilo’s mental status examination was normal with the

exception of a depressed mood that could benefit from some psychotherapy. From

her examination, she concluded that Dattilo “will be able to perform work on a

consistent basis, maintain a regular attendance and finish normal workweek” and


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“will likewise also be able to deal with the usual stress encountered in a

competitive workplace.” Further, even if the ALJ erred in concluding that Dattilo's

mental limitations were nonsevere, any error is harmless because the ALJ

considered Dattilo’s mental limitations when assessing his residual functional

capacity. See Lewis v. Astrue, 

, 911 (9th Cir. 2007).

      2. Dattilo argues that the ALJ failed to consider the combined impact of his

physical and mental impairments. The ALJ is required to consider “all [the

claimant’s] symptoms, including pain, and the extent to which [the claimant’s]

symptoms can reasonably be accepted as consistent with the objective medical

evidence and other evidence.” 20 C.F.R. § 404.1529; see Beecher v. Heckler, 

, 694 (9th Cir. 1985) (“A claimant’s illnesses must be considered in

combination and must not be fragmentized in evaluating their effects”). As the

district court correctly described, the ALJ “thoroughly considered and accurately

summarized the evidence, including Dattilo’s medical history, all medical evidence

as to both plaintiff’s physical impairments and mental status, and statements about

how plaintiff’s symptoms affect him.”

      3. Dattilo argues that the ALJ failed to follow the “special technique” under

20 C.F.R. § 404.1520a(a), applicable when evaluating severity of mental

impairments. The “special technique” requires the ALJ to determine whether the

claimant has “a medically determinable mental impairment[],” 20 C.F.R. §


                                          3
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, 

(c). The ALJ’s decision “must include a

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

areas.” 

Here, the ALJ provided a detailed description

explaining the determinations of “no” or “mild” degrees of functional limitations in

the four areas and properly applied the special technique in assessing Dattilo’s

mental impairments.

      4. Dattilo challenges the ALJ’s finding that the record did not support his

testimony regarding the severity of his symptoms and limitations. “An ALJ cannot

be required to believe every allegation of disabling pain, or else disability benefits

would be available for the asking.” Fair v. Bowen, 

, 603 (9th Cir.

1989). “[T]he claimant ‘must produce objective medical evidence of an

underlying impairment’ or impairments that could reasonably be expected to

produce some degree of symptom.” 

(quoting

Smolen v. Chater, 

, 1281 (9th Cir. 1996)). If the claimant does so,

and there is no affirmative evidence of malingering, then the ALJ can reject the

claimant’s testimony as to the severity of the symptoms “only by offering specific,

clear and convincing reasons for doing so.” 

80 F.3d at 1281).


                                           4
      The ALJ properly discredited Dattilo’s testimony, explaining that although

his impairments could reasonably be expected to cause the alleged symptoms,

testimony on the severity of his symptoms were exaggerated in light of the

evidence. In so concluding, the ALJ highlighted the discrepancy between

subjective testimony and objective medical evidence. For example, the diagnostic

imaging showed only mild impairment; Dattilo’s chiropractor indicated overall

improvement; Dr. Mirza’s examination indicated no acute distress, no evidence of

radiating pain, intact sensation in upper extremities, normal motor strength, normal

gait, and no acute distress; and an emergency room visit indicated similar results.

Additionally, the ALJ relied on Dattilo’s history of conservative treatment, which

“is sufficient to discount a claimant's testimony regarding severity of an

impairment."” Parra v. Astrue, 

, 751 (9th Cir. 2007).

      5. Dattilo argues that the ALJ violated his due process rights by misapplying

the Medical Vocational Guidelines (commonly referred to as “the grids”) at step

five. He identifies three errors: using the wrong age category in considering the

grids, finding that he could perform light work, and considering whether he had

transferable work skills.

      First, “[f]or purposes of applying the grids, there are three age categories:

younger person (under age 50), person closely approaching advanced age (age 50-

54), and person of advanced age (age 55 or older).” Lockwood v. Comm’r Social


                                          5
Sec. Admin., 

, 1071 (9th Cir. 2010) (citing 20 C.F.R. § 404.1563(c)–

(e)). If a claimant is “within a few days to a few months of reaching an older age

category,” an ALJ may consider using the older age category in certain cases, 20

C.F.R. § 404.1563(b), but the ALJ is not required to do so and need not explain

why an older age category was not used. 

–71. The

ALJ is “required by regulation only to consider whether to use the older age

category.” 

(emphasis added). Here, the ALJ erred because it

considered age at the time of alleged disability onset (51 years old), not age at the

time of final decision (54 years old) as required. Russell v. Bowen, 

, 84

(9th Cir. 1988). However, the error was harmless because Dattilo still fell into the

“approaching advanced age” category regardless of the age used, and the ALJ

considered using—but chose not to use—the older, “advanced age” category. See

–71.

      Second, “[l]ight work involves lifting no more than 20 pounds at a time with

frequent lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. §

404.1567(b). The ALJ properly considered the medical evidence to support that

Dattilo could perform a reduced range of light work.

      Third, the ALJ found that Dattilo possessed the transferrable skills

of “knowledge of building processes, materials and tools for construction,” and

that he could make a successful adjustment to other work as a general hardware


                                          6
salesperson. Again, the ALJ’s reasoning was free of legal error and sufficiently

supported by the vocational expert’s testimony.

      AFFIRMED.




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