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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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 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 ) ) ) ) ) ) ) ) ) ) ) ) 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 23 24 25 26 27 28 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. 12 13 Dated: May 18, 2012 14 ______________________________ Marc L. Goldman United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16

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