Cindy Pipkin v. Michael J. Astrue

Filing 16

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

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EASTERN DIVISION

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9

CINDY PIPKIN,

)
)
)
)
)
)
)
)
)
)
)
)
)
)

Plaintiff,

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11
v.
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13
14

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

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Case No. EDCV 12-01567-MLG
MEMORANDUM OPINION AND ORDER

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17

Plaintiff Cindy Pipkin seeks judicial review of the Commissioner’s

18

final

19

benefits (“DIB”) and Supplemental Security Income (“SSI”) benefits. For

20

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

21

and the matter is dismissed with prejudice.

decision

denying

her

applications

for

disability

insurance

22
23

I.

Background

24

Plaintiff filed her DIB and SSI applications on April 23, 2009,

25

alleging disability beginning January 1, 2009, due to bipolar disorder,

26

major depression, agoraphobia and migraine headaches. (AR at 42-43,

27

108.) Plaintiff was born on May 7, 1959, and was 49 years old at the

28

time she filed her applications for benefits. (Administrative Record
1

1

(“AR”) at 97.) She completed three years of college and has relevant

2

work experience as a babysitter. (AR at 109, 113.)

3

Plaintiff’s applications were denied initially on August 12, 2009,

4

and upon reconsideration on October 20, 2009. (AR at 46-50, 51-55.) An

5

administrative

6

Administrative Law Judge (“ALJ”) F. Keith Varni. Plaintiff, represented

7

by counsel, testified, as did Plaintiff’s daughter. (AR at 20-41.)

8
9

hearing

was

held

on

September

24,

2010,

before

On November 5, 2010, the ALJ issued an unfavorable decision. (AR at
9-17.)

The

ALJ

found

that

the

medical

evidence

established

that

10

Plaintiff suffered from the severe impairment of a mood disorder. (AR at

11

11.) The ALJ determined that Plaintiff’s impairments did not meet, and

12

were not medically equal to, one of the listed impairments in 20 C.F.R.,

13

Part 404, Subpart P, Appendix 1. (Id.) The ALJ further found that

14

Plaintiff retained the residual functional capacity (“RFC”) to perform

15

a full range of work at all exertional levels with the nonexertional

16

limitation that she could not perform detailed work. (AR at 12.)

17

The ALJ determined that Plaintiff was capable of performing her

18

past relevant work as a baby sitter. (AR at 16.) He also concluded, at

19

Step Five of the sequential process, that Plaintiff was capable of

20

performing other jobs in the national economy, and therefore Plaintiff

21

was not disabled within the meaning of the Social Security Act. See 20

22

C.F.R. § 416.920(f). (AR at 27.)

23

On July 25, 2012, the Appeals Council denied review. (AR at 1-4.)

24

Plaintiff timely commenced this action for judicial review. On February

25

1, 2013, the parties filed a Joint Stipulation (“Joint Stip.”) of

26

disputed facts and issues. Plaintiff contends that the ALJ erred by

27

failing to: (1) properly consider the treating physician’s opinion; (2)

28

provide a complete and proper assessment of Plaintiff’s RFC; (3)
2

1

properly determine whether Plaintiff could perform her past relevant

2

work as a babysitter; (4) obtain vocational expert (“VE”) testimony; and

3

(5) properly assess the lay witness testimony. (Joint Stip. at 3.)

4

Plaintiff

5

applications and payment of benefits or, in the alternative, remand for

6

a new administrative hearing. (Joint Stip. at 26.) The Commissioner

7

requests that the ALJ’s decision be affirmed. (Joint Stip. at 26-27.)

seeks

reversal

of

the

Commissioner’s

denial

of

her

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9
10

II.

Standard of Review
Under

42

U.S.C.

§

405(g),

a

district

court

may

review

the

11

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

12

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

13

error or are not supported by substantial evidence in the record as a

14

whole.” Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1990); Batson v.

15

Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Parra

16

v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means

17

such evidence as a reasonable person might accept as adequate to support

18

a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Widmark

19

v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). It is more than a

20

scintilla, but less than a preponderance. Robbins v. Soc. Sec. Admin.,

21

466 F.3d 880, 882 (9th Cir. 2006). To determine whether substantial

22

evidence supports a finding, the reviewing court “must review the

23

administrative record as a whole, weighing both the evidence that

24

supports

25

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

26

the evidence can support either affirming or reversing the ALJ’s

27

conclusion,” the reviewing court “may not substitute its judgment for

28

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

and

the

evidence

that

detracts

3

from

the

Commissioner’s

1

III. Discussion

2

A.

3

The ALJ Gave Appropriate Weight to the Opinion of Plaintiff’s
Treating Physician

4

Plaintiff contends that the ALJ failed to give controlling weight

5

to the opinion of her treating physician, Dr. Khushro B. Unwalla. (Joint

6

Stip. at 3.) Plaintiff claims that the September 28, 2009 Mental

7

Disorder Questionnaire Form and the February 1, 2010 Work Capacity

8

Evaluation (Mental), both prepared by Dr. Unwalla, establish that she

9

has bipolar disorder and marked limitations in the ability to perform a

10

variety of work-related functions. (Id., citing AR at 276-280, 310-311.)

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For example, Dr. Unwalla opined that Plaintiff had marked limitations in

12

nine work-related areas and extreme limitations in the ability to

13

respond appropriately to changes in the work setting and the ability to

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set realistic goals or make plans independently of others. (AR at 310-

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311.)

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An ALJ should generally accord greater probative weight to a

17

treating physician’s opinion than to opinions from non-treating sources.

18

See

19

legitimate reasons for rejecting a treating physician’s opinion in favor

20

of a non-treating physician’s contradictory opinion. Orn v. Astrue, 495

21

F.3d 625 (9th Cir. 2007); Lester v. Chater, 81 F.3d 821, 830 (9th Cir.

22

1996). However, the ALJ need not accept the opinion of any medical

23

source, including a treating medical source, “if that opinion is brief,

24

conclusory, and inadequately supported by clinical findings.” Thomas v.

25

Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); accord Tonapetyen v.

26

Halter,

27

considered by the adjudicator in determining the weight to give a

28

medical opinion include: “[l]ength of the treatment relationship and the

20

C.F.R.

242

§

F.3d

404.1527(d)(2).

1144,

1149

The

(9th

4

ALJ

Cir.

must

2001).

give

The

specific

factors

to

and

be

1

frequency of examination” by the treating physician; and the “nature and

2

extent of the treatment relationship” between the patient and the

3

treating

4

404.1527(d)(2)(i)-(ii), 416.927(d)(2)(i)-(ii).

5

physician.

Orn,

495

F.3d

at

631-33;

20

C.F.R.

§§

The ALJ provided several legitimate reasons for refusing to give

6

Dr.

7

controlling weight, each of which was supported by substantial evidence

8

in the record. First, the ALJ noted that the extreme limitations found

9

by Dr. Unwalla were unsupported by the medical record as a whole or by

10

Dr. Unwalla’s own treatment records. (AR at 14, 15.) For example, the

11

consultative examining psychiatrist, Dr. Linda M. Smith, M.D., found

12

that Plaintiff did not have bipolar disorder or any other psychiatric

13

diagnosis and that there was evidence of Plaintiff exaggerating her

14

symptoms. (AR at 244-250.) The consultative examining neurologist, Dr.

15

Robert A. Moore, M.D., found no neurological problems and determined

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that Plaintiff could perform a wide range of work without any serious

17

restrictions. (AR at 251-254.)

18

Unwalla’s

If

a

September

treating

28,

2009

professional’s

and

February

opinion

is

1,

2010

opinions

contradicted

by

an

19

examining

20

independent clinical findings, the Commissioner may resolve the conflict

21

by relying on the latter. See Andrews v. Shalala, 53 F.3d 1035, 1041

22

(9th Cir. 1995); see also Orn, 495 F.3d at 632 (ALJ may reject opinion

23

of treating physician in favor of examining physician whose opinion

24

rests on independent clinical findings). Because Drs. Smith and Moore’s

25

opinions were based upon their own independent examination of Plaintiff,

26

the ALJ properly relied upon those opinions in rejecting Dr. Unwalla’s.

27

Similarly, the reviewing State Agency physicians determined that

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there was no evidence of a medically determinable mental impairment and

professional’s

opinion,

which

5

is

supported

by

different

1

that Plaintiff had only mild limitations in activities of daily living

2

and moderate limitations in maintaining concentration, persistence and

3

pace. (AR at 256-274.)

4

In addition, the ALJ noted that the severe functional limitations

5

found by Dr. Unwalla were not supported by Dr. Unwalla’s own treatment

6

notes or mental status examinations of Plaintiff. (AR at 14-15.) The

7

Commissioner

8

internally

9

evidence. See 20 C.F.R. § 404.1527(c)(2); see also Johnson v. Shalala,

10

60 F.3d 1428, 1432 (9th Cir. 1995) (holding that ALJ properly rejected

11

physician’s determination where it was “conclusory and unsubstantiated

12

by relevant medical documentation”).

may

take

into

inconsistent

in

account

whether

determining

the

a

medical

weight

to

opinion
accord

is
the

13

The ALJ also rejected Dr. Unwalla’s February 1, 2010 opinion

14

because it was a “check-the-box” form without any supporting clinical or

15

laboratory findings. (AR at 14.) The February 1, 2010 opinion is a two-

16

page report, in which Dr. Unwalla merely checked off preprinted choices

17

and did not provide any elaboration or explanation for his opinions. (AR

18

at 310-311.) Thus, it was reasonable for the ALJ to refuse to give

19

significant weight to Dr. Unwalla’s opinion. See Johnson, 60 F.3d at

20

1432;

21

permissibly

22

explanation of the bases of their conclusions”).

Crane

v.

Shalala,

rejected

76

F.3d

“check-off

251,

reports

253

(9th

that

did

Cir.

1996)

(ALJ

not

contain

any

23

Finally, the ALJ determined that Dr. Unwalla’s reports were not

24

supported by Plaintiff’s activities of daily living or the level of

25

treatment she was receiving. (AR at 14, 15.) The ALJ noted that, if

26

Plaintiff had the extreme functional mental limitations noted by Dr.

27

Unwalla, she “would need round the clock care,” and “could not function

28

out of confinement.” (AR at 14, 15.) However, contrary to Dr. Unwalla’s
6

1

extreme restrictions, Plaintiff was able to care for herself, manage

2

funds and take care of her disabled son on her own. See Rollins v.

3

Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (finding that physician’s

4

restrictions, which were so “extreme as to be implausible,” were

5

inconsistent with the claimant’s ability to maintain a household and

6

care for two young children alone).

7

In sum, the ALJ provided specific and legitimate reasons for

8

rejecting Dr. Unwalla’s September 28, 2009 and February 1, 2010 reports,

9

each of which is supported by substantial evidence in the record.

10

Accordingly, no relief is warranted on this claim of error.

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B.

12

Plaintiff contends that the ALJ failed to provide a complete and

13

proper assessment of her RFC. (Joint Stip. at 10.) More specifically,

14

Plaintiff argues that the ALJ erred in failing to include in the RFC

15

assessment the mental limitations found by Dr. Unwalla in his September

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28, 2009 and February 1, 2010 reports. (Id.)

The ALJ Properly Assessed Plaintiff’s RFC

17

A claimant’s RFC is what he is capable of doing despite his

18

physical and mental limitations. 20 C.F.R. § 404.1545(a)(1); Cooper v.

19

Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). “RFC is an assessment

20

of an individual’s ability to do sustained work-related physical and

21

mental activities in a work setting on a regular and continuing basis.”

22

SSR 96-8p, 1996 WL 374184, at *1 (S.S.A. July 2, 1996). An RFC

23

assessment is ultimately an administrative finding reserved to the

24

Commissioner. 20 C.F.R. § 404.1527(e)(2). However, an RFC determination

25

is based on all of the relevant evidence, including the diagnoses,

26

treatment, observations, and opinions of medical sources, such as

27

treating and examining physicians. Id.

28

//
7

1

A claimant for disability benefits bears the burden of producing

2

evidence to demonstrate that she was disabled within the relevant time

3

period. Johnson, 60 F.3d at 1432. The existence of a severe impairment

4

is demonstrated when the evidence establishes more than a minimal effect

5

on an individual’s ability to do basic work activities. Smolen v.

6

Chater, 80 F.3d 1273, 1290 (9th Cir. 1996); 20 C.F.R. §§ 404.1521(a),

7

416.921(a).1 Furthermore, the mere existence of a condition is not per

8

se disabling; rather there must be proof of the impairment’s disabling

9

severity. Sample v. Schweiker, 694 F.2d 639, 642-643 (9th Cir. 1982)

10

(internal citations omitted); 42 U.S.C. § 1382c(a)(3)(C)(I).

11

Here, Plaintiff has not meet her burden of showing that she has a

12

disabling condition. As discussed above, the ALJ properly gave little

13

weight to Dr. Unwalla’s September 28, 2009 and February 1, 2010 medical

14

reports, and therefore the ALJ was not required to include Dr. Unwalla’s

15

opinions in his assessment of Plaintiff’s RFC. See Batson, 359 F.3d at

16

1197 (“The ALJ was not required to incorporate evidence from the

17

opinions of [claimant’s] treating physicians, which were permissibly

18

discounted.”). Plaintiff has failed to point to any other evidence in

19

the record to demonstrate that her mental impairment prevents her from

20

sustaining full time work. The ALJ properly referred to the medical

21

evidence in the record in reaching his RFC determination. (AR at 13-16.)

22

This evidence did not demonstrate that Plaintiff’s mood disorder was so

23

severe as to prevent her from sustaining full time work for at least 12

24
25
26
27
28

1

The regulations define “basic work activities” as “the abilities
and aptitudes necessary to do most jobs”, which include physical
functions such as walking, standing, sitting, pushing, carrying;
capacities for seeing, hearing and speaking; understanding and
remembering simple instructions; responding appropriately in a work
setting; and dealing with changes in a work setting.
20 C.F.R. §
404.1521(b).
8

1

months, the requirement to establish disability.

2

The ALJ even gave Plaintiff the benefit of the doubt in determining

3

that

4

examining consultative psychiatrist, Dr. Smith, opined that Plaintiff

5

did not have any mental work restrictions (AR at 250), while the

6

examining consultative neurologist determined that Plaintiff was able to

7

follow complex commands and perform complex tasks. (AR at 253.) The ALJ

8

properly synthesized the medical record and the conclusions of the

9

reviewing physicians in assessing Plaintiff with an RFC for a full range

10

of work at all exertional levels but with the nonexertional limitation

11

of not performing detailed work. The ALJ’s RFC assessment was supported

12

by substantial evidence in the record, and therefore, Plaintiff is not

13

entitled to relief with respect to this claim.

14
15

Plaintiff

C.

could

not

perform

detailed

work.

(AR

at

12.)

The

The ALJ Properly Determined That Plaintiff Was Capable of
Performing Her Past Relevant Work

16

Plaintiff argues that the ALJ erred in determining, at Step Four of

17

the sequential process, that Plaintiff was able to perform her past

18

relevant work as a babysitter both as she actually performed it and as

19

performed in the national economy. (Joint Stip. at 12.) Plaintiff

20

contends that there is not enough information in the record to determine

21

either how Plaintiff actually performed her job or how the job is

22

performed in the national economy. (Id. at 13.) Plaintiff also claims

23

that the ALJ’s RFC determination that Plaintiff could not perform

24

“detailed work” contradicts the definition of the job as determined by

25

the Dictionary of Occupational Titles (“DOT”). (Id. at 14.)

26

At Step Four, the claimant bears the burden of showing that she can

27

no longer perform her past relevant work. See 20 C.F.R. §§ 404.1520(e),

28

416.920(e). Although the burden of proof lies with the claimant at step
9

1

four, the ALJ still has a duty to make the requisite factual findings to

2

support his conclusion. SSR 82–62. This is done by looking at the

3

“residual functional capacity and the physical and mental demands” of

4

the claimant’s past relevant work. 20 C.F.R. §§ 404.1520(e), 416.920(e).

5

The claimant must be able to perform either the actual functional

6

demands and job duties of a particular past relevant job, or as

7

generally required by employers in the national economy. SSR 82-61. The

8

two sources of information that may be used to determine how a claimant

9

actually performed her work is a properly completed vocational report

10

and the claimant’s own testimony. SSR 82-61, 82-41.

11

Plaintiff completed a vocational report that described her basic

12

job duties as a babysitter, which was to watch the children, feed them,

13

pick them up, and make sure they were safe. (AR at 109-110.) She also

14

testified to the same general information at the administrative hearing.

15

(AR at 23.) This was sufficient information to determine that Plaintiff

16

was able to perform her past relevant work as actually performed.

17

Although the ALJ did not make any specific findings in determining that

18

Plaintiff was capable of performing her past relevant work as generally

19

performed, any error was harmless because the ALJ properly determined

20

that Plaintiff could perform her past work as she actually performed it.

21

See Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001) (“We have

22

never required explicit findings at step four regarding a claimant’s

23

past relevant work as generally performed and as actually performed.”)

24

(Emphasis in original.)

25

In addition, the ALJ’s RFC assessment that Plaintiff could not

26

perform “detailed work” does not necessarily conflict with the DOT’s

27

description of the job of Child Monitor (DOT 301.667-010). Plaintiff

28

contends that the fact that the job of Child Monitor requires Reasoning
10

1

Level Three skills, which requires dealing “with problems involving

2

several concrete variables in or from standardized situations,” is

3

incompatible with the ALJ’s determination that Plaintiff could not

4

perform detailed work. However, Plaintiff stated in her vocational

5

report that, as she actually performed the job of babysitter, she did

6

not use machines, tools, or equipment; she did not use technical

7

knowledge or skills; she did not write or complete reports; she did not

8

supervise other people; and she was not a lead worker. (AR at 109-110.)

9

As noted above, Plaintiff testified that she watched several children,

10

kept them safe, picked them up and fed them. This did not require the

11

performance of any “detailed work.”

12

Moreover, the DOT lists the general duties of a Child Monitor as

13

observing and monitoring play activities, amusing children by reading to

14

or playing games with them, preparing and

15

dressing and bathing the infant or child, accompanying children on walks

16

or outings, washing and ironing clothes, and cleaning the child’s

17

quarters and/or other parts of the home. DOT 301.677-010, 1991 WL

18

672652. None of these activities require the performance of “detailed

19

work,” so as to preclude Plaintiff from performing the job of Child

20

Monitor. Accordingly, Plaintiff’s argument is without merit.

21

D.

22

Plaintiff

serving meals or formula,

Any Possible Error the ALJ Made at Step Five Was Harmless
contends

that

the

ALJ

erred,

at

Step

Five

of

the

23

sequential evaluation, in concluding that Plaintiff could perform other

24

jobs in the national economy because the ALJ did not identify any

25

particular job that Plaintiff could perform nor did he obtain the

26

testimony of a VE. (Joint Stip. at 17.) This contention is without

27

merit.

28

determined that Plaintiff could perform her past relevant work as a

Because,

as

discussed

in

11

detail

above,

the

ALJ

properly

1

babysitter at Step Four of the sequential evaluation, any possible error

2

the ALJ made at Step Five was harmless. See Ludwig v. Astrue, 681 F.3d

3

1047, 1054 (9th Cir. 2012) (harmless error rule applies to review of

4

administrative decisions regarding disability); Tommasetti v. Astrue,

5

533 F.3d 1035, 1042-43 (9th Cir. 2008) (same).

6

E.

7

Plaintiff contends that the ALJ improperly rejected the lay witness

8

testimony offered by her daughter, Sarah Pipkin, and the written

9

statement offered by her friend, Suzy Drew. (Joint Stip. at 21.) In her

10

testimony at the administrative hearing, Ms. Pipkin testified to the

11

following regarding her observations of Plaintiff: she could “barely

12

leave the house by herself;” she experienced panic attacks around

13

strangers and in unfamiliar places; she had severe migraine headaches

14

that sometimes prevented her from getting out of bed; and she often

15

required assistance in driving and running errands. (AR at 35-40.) On

16

June 20, 2009, Plaintiff’s friend Ms. Drew completed a Third Party

17

Function

18

regarding Plaintiff: she lacked energy to complete household chores; she

19

rarely left her home; she had difficulty concentrating; and she was

20

afraid of going out alone and of being in crowded places. (AR at 137-

21

144.)

The ALJ Properly Considered the Lay Witness Testimony

Report

in

which

she

reported

the

following

observations

22

The ALJ rejected both Ms. Pipkin’s and Ms. Drew’s statements based

23

upon the following reasons: (1) they each have a familial or quasi-

24

familial financial interest in Plaintiff receiving benefits; (2) they

25

are not medical doctors or other qualified experts and therefore cannot

26

give a qualified opinion as to Plaintiff’s impairments or ability to

27

perform work activity; and (3) their opinions are not supported by

28

Plaintiff’s medical records. (AR at 13-14.)
12

1

A lay witness can provide testimony about Plaintiff’s symptoms and

2

limitations. See Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996).

3

“Lay testimony as to a claimant’s symptoms is competent evidence that an

4

ALJ must take into account, unless he or she expressly determines to

5

disregard such testimony and gives reasons germane to each witness for

6

doing so.” Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001); see also

7

Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993). Appropriate

8

reasons include testimony unsupported by the medical record or other

9

evidence and inconsistent testimony. Lewis, 236 F.3d at 512.

10

The Court finds that it was improper for the ALJ to discredit the

11

two witnesses’ statements on the ground that they each might have a

12

financial interest in Plaintiff obtaining benefits. While some courts

13

have held that an ALJ may consider a witness’ financial interest in the

14

award of benefits in evaluating their credibility,2 the Ninth Circuit has

15

consistently held that bias cannot be presumed from a familial or

16

personal relationship. See, e.g., Regennitter v. Comm’r of Soc. Sec.

17

Admin., 166 F.3d 1294, 1298 (9th Cir. 1999). This is because a personal

18

relationship is a necessity for lay witness testimony since it is

19

provided by people “in a position to observe a claimant’s symptoms and

20

daily activities.” Dodrill, 12 F.3d at 918. The ALJ’s reasoning that

21

witnesses who live with or support a claimant are not credible for

22

reasons of bias cannot be considered legally proper, since the same

23

rationale could be used to reject lay witness testimony in almost every

24

case.

25

The Court also finds that the ALJ’s rejection of Ms. Pipkin’s and

26

Ms. Drew’s lay witness statements based upon the fact that neither of

27
28

2

See Buckner v. Apfel, 213 F.3d 1006, 1013 (8th Cir. 2000);
Rautio v. Bowen, 862 F.2d 176, 180 (8th Cir. 1988).
13

1

the witnesses is a medical professional was also improper.

2

ALJ need not discuss “medical diagnoses” made by lay witnesses because

3

they “are beyond the competence of lay witnesses and therefore do not

4

constitute competent evidence,” nevertheless “lay witness testimony as

5

to a claimant’s symptoms or how an impairment affects ability to work is

6

competent

7

comment.” Nguyen, 100 F.3d at 1467 (citations omitted). Thus, the ALJ

8

erred in finding Plaintiff’s daughter and friend incompetent to testify

9

regarding the effect of Plaintiff’s symptoms on her ability to work.

evidence,

and

therefore

cannot

be

Although an

disregarded

without

10

Where one or more of the ALJ’s several reasons supporting an

11

adverse credibility finding is invalid, the Court applies a harmless

12

error standard. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d

13

1155, 1162 (9th Cir. 2008) (citing Batson, 359 F.3d at 1195-1197. As

14

long

15

conclusions on ... credibility” and the error “does not negate the

16

validity of the ALJ’s ultimate [credibility] conclusion,” the error is

17

deemed harmless and does not warrant reversal. Id. at 1197; see also

18

Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir.

19

2006)(defining harmless error as such error that is “irrelevant to the

20

ALJ’s ultimate disability conclusion”).

as

there

remains

“substantial

evidence

supporting

the

ALJ’s

21

Although the ALJ improperly rejected the testimony of the two lay

22

witnesses based upon their alleged financial interest in Plaintiff

23

obtaining benefits and the fact that they are not medical professionals,

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the

25

determination. The ALJ noted that Ms. Pipkin’s and Ms. Drew’s statements

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regarding Plaintiff’s alleged mental limitations were unsupported by the

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medical record. (AR at 14.) As discussed in detail above, there was no

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credible evidence in the record which showed that Plaintiff’s mood

ALJ

also

provided

a

legitimate

14

reason

for

his

credibility

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disorder was disabling. Aside from Dr. Unwalla’s two reports, which the

2

ALJ properly rejected, there was no medical evidence to demonstrate that

3

Plaintiff was unable to sustain full time work because of her alleged

4

bipolar disorder. Inconsistency with the medical evidence is a germane

5

reason for discrediting the testimony of a lay witness. Bayliss v.

6

Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). Accordingly, despite the

7

ALJ’s improper reliance upon an alleged financial interest and the fact

8

that the witnesses were not medical professionals, any error was

9

harmless because the ALJ provided a proper and legitimate reason for

10

rejecting the witnesses’ statements. Accordingly, Plaintiff’s claim is

11

without merit.

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14
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IV.

Conclusion
For the reasons stated above, the decision of the Social Security

Commissioner is AFFIRMED and the action is DISMISSED with prejudice.

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DATED: February 13, 2013

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______________________________
Marc L. Goldman
United States Magistrate Judge

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