Lori Ann Barry v. Michael J Astrue

Filing 14

MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman/. For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. (twdb)

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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
7
EASTERN DIVISION
8
9
LORI ANN BARRY,
10
Plaintiff,
11
v.
12
13

MICHAEL J. ASTRUE,
Commissioner of the Social
Security Administration,

14
Defendant.
15

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)
)
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Case No. EDCV 11-01657-MLG
MEMORANDUM OPINION AND ORDER

16
17

Plaintiff

Lori

Ann

Barry

seeks

judicial

review

of

the

18

Commissioner’s denial of her application for disability insurance

19

benefits (“DIB”) and supplemental security income benefits (“SSI”).

20

For the reasons stated below, the decision of the Commissioner is

21

affirmed and the action is dismissed with prejudice.

22
23

I. BACKGROUND

24

Plaintiff was born on February 18, 1968. (AR at 70). She has

25

relevant work experience as a merchandise and sales attendant. (AR

26

at 17). Plaintiff filed her applications for benefits on December

27

16, 2008, alleging disability beginning December 15, 2008, due to

28

psychological impairments. (AR at 10, 164). The Social Security
1

1

Administration denied Plaintiff’s applications initially and upon

2

reconsideration. (AR at 10).

3

A hearing was held before Administrative Law Judge (“ALJ”)

4

Sharilyn Hopson on July 20, 2010. (AR at 10). Plaintiff, who was

5

represented

6

vocational expert (“VE”). The ALJ issued a decision on September

7

13, 2010, denying Plaintiff’s application. (AR at 10-18). The ALJ

8

found that Plaintiff suffers from the following severe impairments:

9

morbid obesity, major depressive disorder, anxiety, type 2 diabetes

10

mellitus, adult attention deficit disorder (“ADD”), irritable bowel

11

syndrome,

12

determined that Plaintiff has the residual functional capacity

13

(“RFC”) to perform medium work and is capable of performing her

14

past relevant work. (AR at 17-18). The Appeals Council denied

15

Plaintiff’s request for review (AR at 1).

16

by

and

Plaintiff

counsel,

testified

migraines.

commenced

(AR

this

at

at

the

13).

action

hearing,

as

Nevertheless,

for

judicial

did

the

review

a

ALJ

on

17

November 1, 2011. On May 2, 2012, the parties filed a joint

18

statement of disputed issues (“Joint Stip.”). Plaintiff contends

19

that the ALJ erred in several respects. First, the ALJ failed to

20

properly consider the relevant medical evidence, including the

21

opinions of Melissa Darnell, a marriage and family therapist, and

22

Bipin Patel, M.D., her treating psychiatrist, while improperly

23

giving

24

physician Linda M. Smith, M.D. (Joint Stip. at 4-8). Second, the

25

ALJ

26

subjective complaints. (Joint Stip. at 12-14). Finally, the ALJ

27

failed

28

claimant’s

significant

improperly

to

weight

assessed

properly
friend,

to

her

consider
Juanita

the

opinion

of

credibility

the

Medina.
2

third

in

party

(Joint

state

examining

considering

statements

Stip.

at

her

of

17-19).

1

Plaintiff

2

alternatively,

3

(Joint Stip. at 21). Defendant requests that the ALJ’s decision be

4

affirmed, or, if the Court finds that the ALJ committed reversible

5

error,

6

proceedings. (Joint Stip. at 22).

seeks

that

reversal

remand

the

for

Court

and

an

further

remand

award

of

benefits,

administrative

for

further

or

proceedings.

administrative

7
8

II.

STANDARD OF REVIEW

9

Under 42 U.S.C. § 405(g), a district court may review the

10

Commissioner’s decision to deny benefits. The Commissioner or ALJ’s

11

decision must be upheld unless “the ALJ’s findings are based on

12

legal error or are not supported by substantial evidence in the

13

record as a whole.” Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir.

14

1990);

15

Substantial evidence means such evidence as a reasonable person

16

might accept as adequate to support a conclusion. Richardson v.

17

Perales, 402 U.S. 389, 401 (1971); Widmark v. Barnhart, 454 F.3d

18

1063, 1066 (9th Cir. 2006). It is more than a scintilla, but less

19

than a preponderance. Robbins v. Soc. Sec. Admin., 466 F.3d 880,

20

882 (9th Cir. 2006). To determine whether substantial evidence

21

supports

22

administrative record as a whole, weighing both the evidence that

23

supports and the evidence that detracts from the Commissioner’s

24

conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996).

25

“If the evidence can support either affirming or reversing the

26

ALJ’s conclusion,” the reviewing court “may not substitute its

27

judgment for that of the ALJ.” Robbins, 466 F.3d at 882.

28

//

Parra

a

v.

Astrue,

finding,

the

481

F.3d

742,

reviewing

3

746

court

(9th

“must

Cir.

2007).

review

the

1

III.

Analysis

2

A. The ALJ Appropriately Considered the Relevant Medical

3

Evidence

4

1. The Opinion of Therapist Melissa Darnell

5

The record contains a brief letter from Plaintiff’s therapist,

6

Melissa Darnell, stating that she had been seeing Plaintiff on a

7

biweekly basis for approximately five months. (AR at 331). The

8

letter

9

syndrome,

explains
high

that

Plaintiff

suffers

blood

pressure,

from

diabetes,

irritable

bipolar

bowl

depression,

10

anxiety disorder, and ADD. The letter further states that these

11

mental health issues and medical conditions “interfere[] with

12

[Plaintiff’s]

13

employment.” (AR at 331). The record also contains several pages of

14

notes from Ms. Darnell, which discuss treatment and the diagnosis

15

that Plaintiff suffers from depression. (AR at 388-89, 395-96).

ability

to

obtain

and

then

maintain

full-time

16

In her decision, the ALJ noted that she had considered the

17

correspondence from Ms. Darnell, but that because it was not from

18

an acceptable medical source, she did not have to give it the same

19

consideration as she would to a qualifying medical source opinion.

20

(AR at 17). As to Darnell’s comments about Plaintiff’s ability to

21

maintain full-time employment, the ALJ further explained that “such

22

disability statements are reserved to the Commissioner.” (AR at

23

17).

24

The parties dispute whether the ALJ was required to provide

25

appropriate reasons for rejecting the opinions of Ms. Darnell.

26
27
28
4

1

(Joint Stip. at 4-6, 9-10).1 However, the ALJ did not reject Ms.

2

Darnell’s medical diagnoses. Rather, the ALJ’s found that Plaintiff

3

does suffer from each of the severe impairments listed in Ms.

4

Darnell’s letter.2 (AR at 12, 331). Moreover, there do not appear

5

to be any inconsistencies between the ALJ’s RFC determination and

6

Ms. Darnell’s treatment notes.(AR at 13, 388-89, 395-96)

7

While

the

ALJ

did

reject

Ms.

Darnell’s

opinion

that

8

Plaintiff’s conditions interfere with her ability to obtain and

9

maintain full-time employment, she provided an entirely appropriate

10

reason for doing so. The ultimate determination of disability (i.e.

11

whether a claimant can perform work in the national economy) rests

12

solely with the Commissioner, and the statement of a medical source

13

that a claimant is “unable to work” is not entitled to special

14

weight. 20 C.F.R. 416.927(d)(1); see Tonapetyan v. Halter, 242 F.3d

15

1144, 1148-49 (9th Cir. 2001) (ALJ not bound by opinion of treating

16

physician with respect to ultimate determination of disability);

17

Martinez v. Astrue, 261 Fed.Appx 33, 35 (9th Cir. 2007) (“[T]he

18

opinion that [the claimant] is unable to work is not a medical

19

opinion ... [and] is therefore not accorded the weight of a medical

20
21
22
23

1

In Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012),
the Court noted that the opinions of “other medical sources” as
defined by 20 C.F.R. § 404.1513(d), are not entitled to the same
deference as acceptable medical sources and their opinions may be
discounted if the ALJ “gives reasons germane” for doing so.

24
25
26
27
28

2

While the ALJ did not explicitly find that Plaintiff suffers
from high blood pressure, she did determine that Plaintiff suffers
from the severe impairment of morbid obesity, and high blood
pressure
is
one
of
the
symptoms
of
morbid
obesity.
http://www.mayoclinic.com/health/obesity/DS00314/DSECTION=complic
ations.
5

1

opinion.”). Accordingly, it was appropriate for the ALJ reject Ms.

2

Darnell’s opinion on Plaintiff’s ability to work because “such

3

disability statements are reserved to the Commissioner.” (AR at

4

17).

5

2. The Opinion of Treating Psychiatrist Dr. Patel

6

Plaintiff contends that the ALJ failed to give weight to an

7

assessment from treating psychiatrist Bipin Patel, M.D., without

8

providing adequate reasons for doing so. (Joint Stip. at 6-8). The

9

treating records from Dr. Patel are dated between January and May

10

of 2009.(AR at 318-23). In an initial assessment dated January 31,

11

2009, Dr. Patel noted that Plaintiff’s depression and anxiety

12

interfere with interpersonal, social and occupational functioning.

13

(AR at 323). He also noted that Plaintiff had a current Global

14

Assessment of Functioning (“GAF”) score of 38, but that it had been

15

as high as 68 in the past year. (AR at 321). In Dr. Patel’s follow-

16

up

17

prescribed medication but still felt depressed. (AR at 318-320).

progress

notes,

he

noted

that

Plaintiff

was

taking

her

18

Contrary to Plaintiff’s contention that the “ALJ completely

19

ignored without any comment whatsoever this important assessment

20

from the treating psychiatrist,” the ALJ did reference Dr. Patel’s

21

report in her decision. (AR at 16). While the decision does not

22

mention Dr. Patel by name, it specifically refers to his report and

23

its findings that Plaintiff suffers from depression and anxiety

24

disorder and was being treated with medication. (AR at 16). The

25

ALJ’s

26

Patel’s opinion, as it took into account the diagnosis of major

RFC

determination

appears

27
28
6

entirely

consistent

with

Dr.

1

depressive disorder. (AR at 12-13).3

2

Plaintiff argues in particular that it was error for the ALJ

3

to fail to acknowledge the low GAF scores assessed by Dr. Patel.

4

The GAF Scale provides a measure for an individual's overall level

5

of

6

Psychiatric Ass' n, Diagnostic and Statistical Manual of Mental

7

Disorders 30 (4th ed. 2000) (“DSM IV”). However, a GAF score is not

8

determinative

9

Security purposes. 65 Fed.Reg. 50746, 50764–50765 (Aug. 21, 2000)

10

(“The GAF score does not have a direct correlation to the severity

11

requirements in our mental disorders listings.”) Neither the Social

12

Security regulations nor case law require an ALJ to consider a

13

claimant’s GAF score. Orellana v. Astrue, 2008 WL 398834, at *9

14

(E.D. Cal. Feb. 12, 2008) (“While a GAF score may help the ALJ

15

assess Claimant's ability to work, it is not essential and the

16

ALJ's failure to rely on the GAF does not constitute an improper

17

application of the law.”); see also Howard v. Comm’r of Soc. Sec.,

18

276 F.3d 235, 241 (6th Cir. 2002). Thus, the ALJ did not err in

19

failing to mention the GAF scores given by Dr. Patel. See Vincent

20

on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir.

21

1984)

psychological,

(the

of

ALJ

social,

mental

need

and

occupational

disability

only

explain

or

why

functioning.

limitation

for

“significant

Am.

Social

probative

22
3

23
24
25
26
27
28

To the extent it may have been error for the ALJ to reject
Dr. Patel’s diagnosis of Anxiety Disorder without providing reasons
for doing so, this error was harmless. See Tommasetti v. Astrue,
533 F.3d 1035, 1038 (9th Cir. 2008) (harmless error rule applies to
review of administrative decisions regarding disability). The RFC
includes the limitations that Plaintiff can perform only “simple
and repetitive tasks,” is “precluded from doing fast paced work[],”
and can have only “non-intense contact with the public.” Nothing in
Dr. Patel’s assessment suggests that Plaintiff’s Anxiety Disorder
would require additional functional limitations.
7

1

evidence

2

assessment notes that Plaintiff’s score was as high as 68 within

3

the year, a score which denotes only “some mild symptoms” or “some

4

difficulty

5

well.” (AR at 321); DSM IV at 34.

6
7

has

been

in

rejected”).

functioning,”

Furthermore,

but

“generally

even

Dr.

Patel’s

functioning

pretty

Accordingly, the ALJ gave appropriate weight to the opinion of
Dr. Patel.

8

3. The Opinion of State Examining Physician Dr. Smith

9

Plaintiff contends that it was improper for the ALJ to give

10

significant weight to the opinion of consultative examiner Linda M.

11

Smith, M.D. (Joint Stip. at 6-7). Dr. Smith examined Plaintiff on

12

February 17, 2009. (AR at 295-301). She diagnosed Plaintiff with

13

Depressive Disorder, but noted that Plaintiff had stated that her

14

medication, Effexor, was improving everything. Dr. Smith also found

15

that Plaintiff was able to interact appropriately, understand and

16

remember commands, and that her “psychiatric prognosis is good.”

17

(AR

18

[Plaintiff] would not be able to work at this time.” (Id.)

at

300).

Dr.

Smith

did

not

observe

“any

evidence

that

19

A consultative examiner's medical opinion on an applicant's

20

RFC may itself constitute substantial evidence if it rests on

21

independent examination. Tonapetyan v. Halter, 242 F.3d 1144, 1149

22

(9th Cir. 2001). Here, Dr. Smith’s opinion rested on an independent

23

examination

24

inappropriate about the ALJ’s reliance on Dr. Smith’s opinion.

25

B. The ALJ Properly Evaluated Plaintiff’s Credibility

26

Plaintiff argues that the ALJ failed to properly evaluate her

27

credibility regarding her subjective complaints in determining her

28

RFC. At the hearing, Plaintiff testified that she left her job in

of

Plaintiff,

and

8

therefore

there

was

nothing

1

December 2008 because she could no longer handle the pressure of

2

the job or perform as expected. (AR at 28). She further testified

3

that she experiences the following symptoms: trouble handling more

4

than

5

whatsoever, memory and concentration problems, low energy, panic

6

attacks that occur a couple of times per month, uncontrollable

7

crying

8

irritable bowel syndrome causing accidents when she cannot reach

9

the toilet in time, headaches which put her in bed for at least a

10

day triggered by stress, suicidal thoughts, and numbness of the

11

feet. (AR at 29-52).

one

task

jags

at

that

a

time,

occur

a

inability

few

times

to

handle

per

week,

any

daily

pressure

nausea,

12

To determine whether a claimant's testimony about subjective

13

pain or symptoms is credible, an ALJ must engage in a two-step

14

analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)

15

(citing Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir.

16

2007)). First, the ALJ must determine whether the claimant has

17

presented objective medical evidence of an underlying impairment

18

which could reasonably be expected to produce the alleged pain or

19

other

20

claimant produces objective medical evidence of an underlying

21

impairment, an adjudicator may not reject a claimant's subjective

22

complaints based solely on a lack of objective medical evidence to

23

fully

24

Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc). To the

25

extent that an individual's claims of functional limitations and

26

restrictions due to symptoms are reasonably consistent with the

27

objective medical evidence and other evidence in the case, the

28

claimant's allegations will be credited. SSR 96-7p, 1996 WL 374186

symptoms.

Lingenfelter,

corroborate

the

504

alleged

F.3d

severity

9

at

of

1036.

pain.”

“[O]nce

Bunnell

the

v.

1

at *2 (explaining 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4)).4

2

Unless there is affirmative evidence showing that the claimant

3

is malingering, the ALJ must provide specific, clear and convincing

4

reasons for discrediting a claimant's complaints. Robbins, 466 F.3d

5

at 883. “General findings are insufficient; rather, the ALJ must

6

identify

7

undermines the claimant's complaints.” Reddick v. Chater, 157 F.3d

8

715, 722 (9th Cir. 1996) (quoting Lester v. Chater, 81 F.3d 821,

9

834 (9th Cir. 1996)). The ALJ must consider a claimant's work

10

record, observations of medical providers and third parties with

11

knowledge

12

functional restrictions caused by symptoms, effects of medication,

13

and the claimant's daily activities. Smolen v. Chater, 80 F.3d

14

1273, 1283-84 & n.8 (9th Cir. 1996). The ALJ may also employ other

15

ordinary

16

omitted).

17

what

of

testimony

claimant's

techniques

Here,

the

is

ALJ

of

not

credible

limitations,

credibility

concluded

and

aggravating

evaluation.

that

what

Id.

Plaintiff’s

evidence

factors,

(citations

“medically

18

determinable impairments could reasonably be expected to cause some

19

of the alleged symptoms.” (AR at 16). However, the ALJ rejected as

20

not credible Plaintiff's statements “concerning the intensity,

21

persistence and limiting effects of these symptoms” to the extent

22

they are inconsistent with the ALJ’s RFC determination. (AR at 16).

23

As there was no evidence of malingering, the ALJ was required to

24
25
26
27
28

4

“The Secretary issues Social Security Rulings to clarify the
Secretary's regulations and policy .... Although SSRs are not
published in the federal register and do not have the force of law,
[the Ninth Circuit] nevertheless give[s] deference to the
Secretary's interpretation of its regulations.” Bunnell, 947 F.2d
at 346 n.3.
10

1

provide clear and convincing reasons for rejecting this testimony.

2

The ALJ provided clear and convincing reasons for rejecting

3

Plaintiff’s testimony. The ALJ found that Petitioner’s activities

4

of

5

limitations. (AR at 15). Plaintiff’s testimony at the hearing, as

6

well as the function report she submitted dated January 6, 2009,

7

revealed that she could perform the following activities: taking

8

care of her son, driving, shopping for groceries and other items,

9

taking care of personal hygiene, helping with housework, preparing

10

her own food, and regularly talking on the phone with her sister.

11

(AR at 30-36, 171-78). Although a claimant “does not need to be

12

‘utterly incapacitated’ in order to be disabled,” Vertigan v.

13

Halter, 260 F.3d 1044, 1050 (9th Cir. 2001), the ability to perform

14

certain activities of daily life can support a finding that the

15

claimant’s reports of his or her impairment are not fully credible.

16

See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th

17

Cir. 2009); Curry v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1990)

18

(finding that the claimant’s ability to “take care of her personal

19

needs, prepare easy meals, do light housework and shop for some

20

groceries ... may be seen as inconsistent with the presence of a

21

condition which would preclude all work activity”) (citing Fair v.

22

Bowen, 885 F.2d 597, 604 (9th Cir. 1989)).

23

daily

living

Plaintiff

undermined

contends

her

that

the

allegations

ALJ

of

functional

“mischaracterized”

her

24

statements regarding daily activities, since she also testified

25

that she often has help with the activities and does not perform

26

all of them regularly. (Joint Stip. at 12-13). However, when a

27

Plaintiff’s

28

reviewing

statements

court

should

support
not

different

second
11

guess

interpretations,
an

ALJ’s

a

reasonable

1

interpretation of the testimony. Rollins v. Massanari, 261 F.3d

2

853, 857 (9th Cir. 2001) (“It is true that Rollins' testimony was

3

somewhat equivocal about how regularly she was able to keep up with

4

all of these activities, and the ALJ's interpretation of her

5

testimony may not be the only reasonable one. But it is still a

6

reasonable interpretation and is supported by substantial evidence;

7

thus, it is not our role to second-guess it.”). Here, while

8

Plaintiff did testify that some of her activities are performed on

9

a limited basis, the ALJ’s assessment that Plaintiff is able to

10

perform these activities was a reasonable interpretation of her

11

testimony.

12

activities of daily living undermined her credibility was supported

13

by substantial evidence.

Accordingly,

the

ALJ’s

finding

that

Plaintiff’s

14

The ALJ also discussed the observations of a Social Security

15

claims representative who completed a disability report on December

16

16, 2008, after conducting a lengthy face-to-face interview with

17

Plaintiff. (AR at 15, 159-62). The claims representative found that

18

while Plaintiff had trouble answering questions and began to cry a

19

few times during the interview, she otherwise responded well to

20

questions and exhibited no other physical or mental problems.5

21

Though not mentioned by the ALJ, a second report completed by a

22

different claims representative on April 28, 2009, also found that

23

Plaintiff exhibited no physical or mental difficulties, aside from

24

trouble with answering questions. (AR at 187-89). It is appropriate

25
26
27
28

5

While the ALJ, citing to the claims representative’s report,
stated that “[t]he claims representative noted that the claimant
was well groomed but breathing hard,” the report contains no such
notation. (AR at 15, 159-62).
12

1

for an ALJ to consider whether a claimant's subjective complaints

2

are inconsistent with her conduct. Thomas v. Barnhart, 278 F.3d

3

948, 958–59 (9th Cir. 2002) (inconsistency between the claimant's

4

testimony

5

credibility). Here, it was appropriate for the ALJ to consider that

6

despite Plaintiff’s testimony that she suffers from debilitating

7

physical and mental impairments, a claims representative observed

8

that

9

generally behave appropriately in an interview setting.

and

conduct

Plaintiff

could

supported

understand

rejection

questions,

of

claimant's

concentrate,

and

10

These findings constitute clear and convincing reasons for the

11

ALJ’s rejection of Plaintiff’s subjective testimony. Smolen, 80

12

F.3d at 1284. It is the responsibility of the ALJ to determine

13

credibility and resolve conflicts or ambiguities in the evidence,

14

Magallanes v. Brown, 881 F.2d 747, 750 (9th Cir. 1989), and a

15

reviewing

16

determination when it is supported by substantial evidence in the

17

record, as here. See Fair, 885 F.2d at 604. Accordingly, it was

18

reasonable for the ALJ to rely on the reasons stated above in

19

finding

20

severity of her symptoms was not wholly credible.6

court

that

may

not

Plaintiff’s

second-guess

subjective

the

ALJ’s

testimony

credibility

regarding

the

21
22
23
24
25
26
27
28

6

The ALJ also noted that although Plaintiff alleged having
neuropathy of the feet, there was no objective medical evidence to
support these allegations. (AR at 15). To the extent the ALJ
intended this to be an additional reason for rejecting Plaintiff’s
overall testimony regarding her complaints, this reason does not
provide a legitimate basis for discrediting Plaintiff. Plaintiff
testified that she had discussed the neuropathy problems with a
doctor only a couple of days before the hearing, and that the
doctor had said he would refer her to a podiatrist. (AR at 39).
Given this timing, it is unsurprising that the record did not
contain evidence in support of these allegations. Moreover,
13

1

C. The ALJ Properly Considered the Lay Witness’s Statements

2

Plaintiff contends that the ALJ improperly discounted the

3

statements of lay witness Juanita Medina, a friend of Plaintiff.

4

(Joint Stip. at 17-19.) On January 9, 2008, Ms. Medina completed a

5

Third

6

Plaintiff’s abilities and daily activities. (AR at 179-86.) The ALJ

7

found that Ms. Medina was not fully credible for the following

8

reasons: (1) the report merely “mirrors” Plaintiff’s allegations;

9

(2) Ms. Medina is not a medical professional and therefore “is not

Party

Function

12

(3) as Plaintiff’s friend, she has the motivation “to be helpful to

13

the claimant so she can receive benefits;” and (4) her statements

14

were not made under oath. (AR at 15).
can

or

provide

argue

testimony

the

severity

about

a

of

of

claimant’s symptoms in her relationship to her ability to work;”

witness

diagnosis

observations

11

lay

a

her

competent

A

make

detailing

10

15

to

Report,

the

claimant’s

16

symptoms and limitations. See Nguyen v. Chater, 100 F.3d 1462, 1467

17

(9th Cir. 1996). “Lay testimony as to a claimant’s symptoms is

18

competent evidence that an ALJ must take into account, unless he or

19

she expressly determines to disregard such testimony and gives

20

reasons germane to each witness for doing so.” Lewis v. Apfel, 236

21

F.3d 503, 511 (9th Cir. 2001); see also Dodrill v. Shalala, 12 F.3d

22

915, 918-19 (9th Cir. 1993). However, if the ALJ gives germane

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individuals with diabetes frequently suffer from neuropathy. See
http://diabetes.niddk.nih.gov/dm/pubs/neuropathies/. Nevertheless,
any error is harmless given that the ALJ provided other wellsupported reasons for not fully crediting Plaintiff’s statements
regarding her subjective complaints. See Tommasetti v. Astrue, 533
F.3d 1035, 1038 (9th Cir. 2008) (harmless error rule applies to
review of administrative decisions regarding disability).
14

1

reasons for rejecting the testimony of a witness, including the

2

claimant herself, “the ALJ need only point to those reasons when

3

rejecting similar testimony by a different witness.” Molina, 674

4

F.3d at 1114 (citing Valentine v. Astrue, 574 F.3d 685, 694 (9th

5

Cir. 2009)). Even an ALJ’s failure to discuss lay witness testimony

6

at all is harmless when it is “inconsequential to the ultimate

7

nondisability

8

Comm’r, Soc. Sec., 533 F.3d 1155, 1162 (9th Cir. 2008)).

determination.” Id. at 1115 (citing Carmickle v.

9

As discussed in detail above, the ALJ properly rejected

10

Plaintiff’s testimony. Ms. Medina’s report provides essentially the

11

same

12

limitations as Plaintiff’s testimony and does not describe any

13

limitations beyond those Plaintiff herself described. (See AR at

14

179-86.) Accordingly, the ALJ properly rejected the lay witness

15

report

16

Valentine, 574 F.3d at 694 (holding that because “the ALJ provided

17

clear and convincing reasons for rejecting [the claimant’s] own

18

subjective complaints, and because [the lay witness’s] testimony

19

was similar to such complaints, it follows that the ALJ also gave

20

germane reasons for rejecting [the lay witness’s] testimony”).

information

under

regarding

the

standards

Plaintiff’s

alleged

established

in

symptoms

Molina.

See

and

also

21

Furthermore, to establish reversible error, Plaintiff must

22

specifically show that Mr. Medina’s testimony, if credited, would

23

alter

24

(citing Robbins v. Barnhart, 466 F.3d 880, 885 (9th Cir. 2005)

25

(reaffirming that an ALJ’s decision will be reversed when omitted

26

lay

27

conclusion)). Plaintiff has not made any such showing.

28

the

ultimate

testimony,

if

nondisability

credited,

determination.

leads

to

a

Id.

different

at

1116.

disability

In addition, unlike lay testimony, there is no controlling
15

1

precedent

requiring

an

ALJ

to

explicitly

address

written

2

statements, such as the Third Party Function Report in this case,

3

which, as the ALJ noted, was not made under oath. Indeed, it is

4

clear that an ALJ is not required to discuss all evidence in the

5

record in detail. Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir.

6

2003). Accordingly, Plaintiff’s claim is without merit.

7
8

IV. Conclusion

9

For the reasons stated above, the decision of the Social

10

Security Commissioner is AFFIRMED and the action is DISMISSED with

11

prejudice.

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13

Dated: May 18, 2012

14
______________________________
Marc L. Goldman
United States Magistrate Judge

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