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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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 EASTERN DIVISION 8 9 CINDY PIPKIN, ) ) ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff, 10 11 v. 12 13 14 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, Defendant. 15 Case No. EDCV 12-01567-MLG MEMORANDUM OPINION AND ORDER 16 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 8 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.) 11 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 14 set realistic goals or make plans independently of others. (AR at 310- 15 311.) 16 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 16 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 28 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. 11 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 16 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, 24 the 25 determination. The ALJ noted that Ms. Pipkin’s and Ms. Drew’s statements 26 regarding Plaintiff’s alleged mental limitations were unsupported by the 27 medical record. (AR at 14.) As discussed in detail above, there was no 28 credible evidence in the record which showed that Plaintiff’s mood ALJ also provided a legitimate 14 reason for his credibility 1 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. 12 13 14 15 IV. Conclusion For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. 16 17 18 DATED: February 13, 2013 19 20 21 ______________________________ Marc L. Goldman United States Magistrate Judge 22 23 24 25 26 27 28 15

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