Josette Nicole Thibeaux v. Carolyn W Colvin

Filing 21

MEMORANDUM OPINION by Magistrate Judge Alka Sagar. The decision of the Commissioner is AFFIRMED. (See document for complete details) (afe)

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT

10

CENTRAL DISTRICT OF CALIFORNIA – SOUTHERN DIVISION

11
12

JOSETTE NICOLE THIBEAUX,

13

Plaintiff,
v.

14
15
16

NANCY A. BERRYHILL,1
Acting Commissioner of Social
Security,
Defendant.

17

) No. SA CV 16-00952-AS
)
) MEMORANDUM OPINION
)
)
)
)
)
)
)
)
)

18

PROCEEDINGS

19
20

On

21

May

24,

2016,

Plaintiff

Josette

Nicole

Thibeaux

22

(“Plaintiff”) filed a Complaint seeking review of the Commissioner’s

23

denial of Plaintiff’s application for a period of disability and

24

Disability Insurance Benefits (DIB) and Supplemental Security Income

25

Benefits

26

Defendant

27

1

28

(SSI).
filed

(Docket
an

Answer

Entry
to

No
the

1).

On

Complaint

November
and

the

30,

2016,

Certified

Nancy A. Berryhill is now the Acting Commissioner of Social
Security and is substituted for Acting Commissioner Carolyn W.
Colvin in this case. See 42 U.S.C. § 205(g).
1

1

Administrative

2

parties have consented to proceed before a United States Magistrate

3

Judge.

4

Stipulation

5

their respective positions on Plaintiff’s claims.

6

20).

Record

(“AR”).

(Docket

(Docket Entry Nos. 13, 15).
(“Joint

Stip.”)

on

Entry

Nos.

18-19).

The

The parties filed a Joint

February

28,

2017,

setting

forth

(Docket Entry No.

7
8

SUMMARY OF ADMINISTRATIVE DECISION

9
10

On

February

25,

2014,

Plaintiff,

formerly

employed

as

an

11

information clerk, salesperson, and hostess, (see AR 366), filed an

12

application for DIB and SSI benefits, alleging disability beginning

13

on May 15, 2009.

14

Law Judge (“ALJ”), Joseph Lisieski III, deferred a scheduled hearing

15

because Plaintiff was not aware that her attorney had withdrawn as

16

her representative.

17

the record and heard testimony from Plaintiff who was represented by

18

counsel.

19

to obtain more records from Plaintiff’s treating neurologist, Dr.

20

Michael

21

examined the record and heard testimony from Plaintiff, vocational

22

expert, Corinne Porter (“VE”), and medical expert, Dr. Irvin S.

23

Belzer, M.D.

24

Plaintiff benefits in a written decision.

(AR 255, 262).

(AR 96-97).

(AR 32-46).

Mahdad,

M.D.

On October 1, 2013, Administrative

On April 8, 2014, the ALJ examined

The ALJ continued the second hearing in order

(AR

(AR 47-93).

43-45).

On

July

15,

2014,

the

ALJ

On September 12, 2014, the ALJ denied
(AR 11-31).

25
26

The ALJ applied the five-step process in evaluating Plaintiff’s

27

case.

At

step

one,

the

ALJ

determined

28

engaged in substantial gainful activity after the alleged onset date
2

that

Plaintiff

had

not

1

of May 15, 2009, and that Plaintiff’s date last insured was June 30,

2

2011.

3

following

4

resulting loss of concentration, headaches, and poor vision in the

5

right

6

Plaintiff’s impairments did not meet or equal a Listing found in 20

7

C.F.R. Part 404, Subpart P, Appendix 1.

(AR 16).

At step two, the ALJ found that Plaintiff had the

severe

eye.

(AR

impairments:

16).

At

multiple

step

three,

sclerosis

the

ALJ

(“MS”)

with

determined

that

(AR 16).

8
9

Before proceeding to step four, the ALJ found that, through the

10

date last insured, Plaintiff had the residual functional capacity

11

(“RFC”)2 to do less than a full range of sedentary work, including

12

frequent lifting or carrying ten pounds; standing or walking for 2

13

hours

14

occasional

foot

15

bilateral

upper

16

occasional

postural

17

ladders, scaffolds, or unprotected heights; no job that requires

18

driving a vehicle; no activities that require depth perception; no

19

working

20

moisture and wetness; occasional cold; no concentrated exposure to

21

heat or vibrations; limited to simple tasks with simple work related

22

decisions, object oriented; and no inherently stressful jobs such as

23

taking complaints.

and

in

with

an

8-hour

controls;

workday;

sitting

with

frequent

pushing

and

extremity;

reaching,

limitations;

objects

smaller

no

than

no

pulling

handling,

climbing,

newspaper

limitations;

and

with

feeling;

balancing,

print;

no

the

ropes,

frequent

(AR 18).

24

The ALJ found Plaintiff’s statements regarding the intensity,
25

persistence,

and

limiting

effects

of

her

symptoms

not

credible

26
27
28

2

A Residual Functional Capacity is what a claimant can still
do despite existing exertional and nonexertional limitations.
See
20 C.F.R. § 404.1545(a)(1).
3

1

because (1) the objective medical record did not support Plaintiff’s

2

assertions of debilitating symptoms; (2) Plaintiff made inconsistent

3

statements regarding her ability to work at a low-stress, sedentary

4

job; (3) Plaintiff’s condition remained unchanged when she stopped

5

taking her MS medication while pregnant; (4) although Plaintiff was

6

diagnosed with MS in 2000, she has had several jobs and worked after

7

her May 2009 onset date, until August 2009; and (5) Plaintiff’s

8

daily activities indicated that she could do more than alleged.

9

19-21).

(AR

10

After

making

a

credibility

finding,

the

ALJ

addressed

the

11

opinions of Plaintiff’s treating and examining physicians and the
12

non-examining consultants. (See AR 20-23).

The ALJ gave partial

13

weight to the opinion of nonexamining, medical expert, Dr. Belzer,
14

who testified at the hearing.

(AR 22).

After reviewing the medical

15

record, Dr. Belzer testified that Plaintiff had partial blindness in
16

the

right

eye;

took

Rebif;3

had

headaches,

but

records

did

not

17

indicate how severe or frequent; had good exercise habits; and an
18

October 2012 MRI of the brain showed MS and volume loss, which
19

suggests that Plaintiff was developing dementia on an “early basis,”
20

which may have caused memory problems.

(AR 54-57).

21
22

Dr. Belzer opined that Plaintiff could lift or carry 20 pounds

23

occasionally and 10 pounds frequently; had no sitting limitations;

24

could stand or walk for 4 hours in an 8-hour workday but not on a

25

continuous basis and would need breaks every 4 hours for 5 minutes;

26

could frequently push and pull; could occasionally use foot controls

27
28

3

Rebif is prescribed to reduce symptoms and
associated
with
relapsing-remitting
https://medlineplus.gov/druginfo/meds/a604005.html.
4

episodes
MS.

1

with both feet; could occasionally use the stairs but no ladders or

2

scaffolds; could not do activities that required the ability to

3

assess distance with vision or see small objects; no unprotected

4

heights, moving machinery, or motor vehicles, no frequent exposure

5

to wetness, odors, and dust; occasional exposure to cold; infrequent

6

exposure to heat; and occasional exposure to vibrations.

7

59).

8

Plaintiff’s assertions “the benefit of the doubt,” finding that she

9

had a sedentary RFC.

(AR 58-

The ALJ gave partial weight to Dr. Belzer’s opinion and gave

(AR 21).

The ALJ found that Dr. Belzer’s

10

opinion was based on objective medical evidence.

Plaintiff had a

11

significant vision impairment in the right eye, and an October 2012

12

MRI of Plaintiff’s brain showed MS and volume loss, which suggested

13

that Plaintiff may be developing dementia, but was not conclusive

14

that Plaintiff had severe MS.

(AR 22).

15

The ALJ rejected the opinion of examining physician, Dr. Robert
16

A. Moore, M.D., because Dr. Moore did not have an opportunity to
17

review additional relevant medical evidence.

(AR 22).

The ALJ

18

rejected

the

opinions

of

State

agency

physicians,

Dr.

Nicolas

19

Tsoulas, M.D., and Dr. Keith Wahl, M.D., because their opinions were
20

not “supported by the cumulative evidence.”

(AR 23).

21
22

The ALJ gave no weight to the opinion of Plaintiff’s treating

23

neurologist, Dr. Mahdad.

24

could sit 6 hours and stand or walk 2 hours in an 8-hour workday;

25

needed breaks every 30 to 45 minutes; could not handle low-stress

26

jobs; could lift or carry less than 10 pounds occasionally and 10

27

pounds

28

twisting,

rarely;

never

reaching,

(Id.).

climb

and

Dr. Mahdad opined that Plaintiff

ladders;

doing

fine
5

was

limited

manipulations;

in

grasping,

should

avoid

1

exposure to extreme heat, humidity, and hazards; and would likely be

2

absent four days per month.

3

that because of Plaintiff’s gait disturbance, poor coordination,

4

vision and cognitive impairments, and general weakness, Plaintiff

5

was “not employable in any capacity.”

6

weight to Dr. Mahdad’s opinion because (1) while Dr. Mahdad found

7

that Plaintiff could not perform even a low-stress job, Plaintiff’s

8

July 2014 hearing testimony that she could perform a sedentary, low-

9

stress

job

contradicted

(AR 422-27).

Dr.

Mahdad’s

Dr. Mahdad also opined

(AR 463).

The ALJ gave no

opinion;

(2)

the

objective

10

medical record, including Dr. Mahdad’s own treatment notes, lacked

11

support for his opinion; and (3) Dr. Mahdad’s opinion that Plaintiff

12

was

13

alone.

not

employable

is

a

decision

reserved

for

the

Commissioner

(AR 23).

14

The ALJ rejected the opinion of Plaintiff’s treating primary
15

care physician, Dr. Kenneth Horwitz, M.D.

(Id.).

Dr. Horwitz

16

opined that Plaintiff could sit for 4 hours and stand or walk less
17

than

2

hours

in

an

8-hour

workday;

lift

or

carry

20

pounds

18

occasionally and 10 pounds frequently; and was incapable of even a
19

low-stress

job.

(AR

428-33).

The

ALJ

rejected

Dr.

Horwitz’s

20

opinion because Plaintiff’s testimony that she could perform a job
21

that required her to sit for 8 hours in an 8-hour workday day
22

contradicted

Dr.

Horwitz’s

assessment,

and

Dr.

Horwitz’s

own

23

examination

of

Plaintiff

did

not

support

“such

restrictive

24

limitations.”

(AR 23).

25
26

The ALJ rejected the opinion of Plaintiff’s former treating

27

physician, Dr. Thuc Tu, M.D., who opined that Plaintiff could not

28
6

1

work,

2

Commissioner.

because

such

a

finding

is

reserved

solely

for

the

(AR 23, 410).

3

The

ALJ

rejected

the

statements

of

Harriet

Thibeaux,

4

Plaintiff’s mother, because (1) her statements discussed Plaintiff’s
5

symptoms in relation to her abilities, and Ms. Thibeaux was not a
6

medical

professional;

(2)

Ms.

Thibeaux’s

statements

were

biased

7

because of her familial relationship with Plaintiff; and (3) the
8

medical evidence did not support her statements.

(AR 23-24).

9
10

At step four, the ALJ determined that Plaintiff was not able
11

to perform her past relevant work as a policyholder information
12

clerk.

(AR 23).

At step five, the ALJ found Plaintiff was able to

13

perform

jobs

consistent

with

her

age,

education,

and

medical

14

limitations existing in significant numbers in the national economy.
15

The ALJ adopted VE testimony that Plaintiff could perform the jobs
16

of addresser (Dictionary of Occupational Titles (“DOT”) 209.587-010)
17

and order clerk (DOT 209.567-014).

At the hearing, the ALJ asked

18

the VE whether her testimony conflicted with the DOT description for
19

these jobs.

(See AR 91).

Accordingly, the ALJ concluded that

20

Plaintiff was not disabled.

(AR 26).

21
22

On

November

11,

2014,

Plaintiff

requested

that

the

Appeals

23

Council review the ALJ’s Decision, which was denied on March 25,
24

2016.

(AR 1-10).

The ALJ’s Decision then became the final decision

25

of the Commissioner, allowing this Court to review the decision.
26

See 42 U.S.C. §§ 405(g), 1383(c).
27
28
7

1

STANDARD OF REVIEW

2
3

This court reviews the Administration’s decision to determine

4

if it is free of legal error and supported by substantial evidence.

5

See Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th

6

Cir. 2012).

7

but less than a preponderance.

8

1009 (9th Cir. 2014).

9

supports a finding, “a court must consider the record as a whole,

10

weighing both evidence that supports and evidence that detracts from

11

the [Commissioner’s] conclusion.”

12

1033, 1035 (9th Cir. 2001).

13

reasonably

14

conclusion, [a court] may not substitute [its] judgment for that of

15

the ALJ.”

16

2006).

“Substantial evidence” is more than a mere scintilla,

support

Garrison v. Colvin, 759 F.3d 995,

To determine whether substantial evidence

either

Aukland v. Massanari, 257 F.3d

As a result, “[i]f the evidence can
affirming

or

reversing

the

ALJ’s

Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir.

17

PLAINTIFF’S CONTENTIONS

18
19

Plaintiff

20

alleges

that

the

ALJ

(1)

improperly

rejected

the

21

opinions of treating physicians, Dr. Mahdad, Dr. Horwitz, and Dr.

22

Tu, in favor of the opinion of nonexamining medical expert, Dr.

23

Belzer; (2) erred in finding that Plaintiff could perform the jobs

24

of

25

convincing reasons to reject Plaintiff’s subjective pain testimony.

26

(MSP 4-7, 14-18, 21-25, 32-33).

addresser

and

order

clerk;

and

27
28
8

(3)

did

not

give

clear

and

1

DISCUSSION

2
3

After reviewing the record, the Court finds that the ALJ (1)

4

gave

5

treating physicians, Dr. Mahdad, Dr. Horwitz, and Dr. Tu, in favor

6

of the opinion of nonexamining medical expert, Dr. Belzer; (2) did

7

not err at step five in finding that Plaintiff could perform other

8

jobs existing in significant numbers in the national economy; and

9

(3) articulated clear and convincing reasons to find Plaintiff not

10

specific

credible.

and

legitimate

reasons

to

reject

the

opinions

of

The Court therefore AFFIRMS the ALJ’s decision.

11
12

A.

The ALJ Properly Rejected The Opinions Of Treating Physicians,

13

Dr. Mahdad, Dr. Horwitz, And Dr. Tu, In Favor Of Nonexamining

14

Medical Expert, Dr. Belzer

15
16

Plaintiff contends that the ALJ did not provide sufficiently

17

specific reasons to reject the opinion of Dr. Mahdad, Dr. Horwitz,

18

and Dr. Tu, all treating physicians, in favor of the opinion of Dr.

19

Belzer, a nonexamining medical expert.

20

these physicians’ opinions been given proper credit, Plaintiff would

21
22
23

have been found to meet a Listing.

Plaintiff asserts that, had

(Joint Stip. at 4-7, 14-16).

Defendant asserts that the ALJ properly rejected these physicians’
opinions

because

support

their

(1)

the

objective

evidence

of

record

did

not

24

opinions;

(2)

Plaintiff

made

statements

that

25

contradicted Dr. Mahdad and Dr. Horwitz’s opinions; and (3) to the
26

extent that Dr. Tu and Dr. Mahdad opined that Plaintiff could no
27
28
9

1

longer work, such a determination is reserved for the Commissioner

2

alone.

(Joint Stip. at 7-13).

3
4

Social

Security

regulations

require

the

Agency

to

“evaluate

5

every medical opinion we receive,” giving more weight to evidence

6

from a claimant’s treating physician.

7

Where a treating or examining physician's opinion is contradicted by

8

another doctor, the “[Commissioner] must determine credibility and

9

resolve the conflict.”

20 C.F.R. § 404.1527(c).

Valentine v. Comm'r Soc. Sec. Admin., 574

10

F.3d 685, 692 (9th Cir. 2009) (quoting Thomas v. Barnhart, 278 F.3d

11

947, 956–57 (9th Cir. 2002).

12

examining, but non-treating physician, in favor of a non-examining,

13

non-treating physician when he gives specific, legitimate reasons

14

for doing so, and those reasons are supported by substantial record

15

evidence.”

16

amended (Apr. 9, 1996) (quoting Roberts v. Shalala, 66 F.3d at 179,

17

184

18

cannot

19

rejecting the opinion of a treating physician.

20

831.

The

opinions

21

substantial

evidence

22

“independent clinical findings or other evidence in the record.”

23

Thomas, 278 F.3d 947 at 957.

(9th

“An ALJ may reject the testimony of an

Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995), as

Cir.

by

1995)).

itself

The

constitute

of

opinion

of

substantial

non-examining

when

the

a

nonexamining

evidence

that

are

justifies

Lester, 81 F.3d at

physicians

opinions

physician

may

serve

consistent

as
with

24
25
26
27
28

Dr. Belzer’s opinion contradicted the opinions of Dr. Mahdad,
Dr. Horwitz, and Dr. Tu.
provide
opinion.

specific

and

Accordingly, the ALJ was required to

legitimate

reasons

to

reject

each

doctor’s

See Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014).
10

1

1.

Dr. Mahdad

The

ALJ

2
3
4
5
6
7

contradicted
limitations.
1989)

properly

rejected

Plaintiff’s

own

Dr.

Mahdad’s

statements

opinion

regarding

because

her

it

functional

Magallanes v. Bowen, 881 F.2d 747, 751–52 (9th Cir.

(upholding

ALJ's

rejection

of

treating

physician's

opinion

that contradicted the claimant's own testimony); Myers v. Barnhart,

8

2006 WL 1663848, at *6 (C.D. Cal. 2006) (“[A] treating physician's
9

assessment

of

a

claimant's

restrictions

may

be

rejected

to

the

10

extent it ‘appear[s] to be inconsistent with the level of activity’
11

the

claimant

maintains,

or

contradicts

Plaintiff's

testimony.”)

12
13
14

(internal citations omitted).

Dr. Mahdad opined that Plaintiff was

precluded from performing all work and could sit for 6 hours in an

15

8-hour workday.

(AR 424-25).

However, at the July 2014 hearing,

16

Plaintiff testified that she could perform a sedentary, low-stress

17

job where she sat for 8 hours in an 8-hour workday, which directly

18

contradicts Dr. Mahdad’s opinion.

(AR 428-33).

19
20

The

ALJ

also

rejected

Dr.

Mahdad

opinion

because

it

was

21

contradicted by his own treatment notes which indicated somewhat

22

normal findings.

23

2012, examination with Dr. Mahdad, Plaintiff had a normal range of

24

motion, no facial weakness, no nystagmus,4 no involuntary movements,

(See AR 375-78, 388-98).

During a September 13,

25
26
4

27
28

Nystagmus is a vision condition in which the eyes make
repetitive, uncontrolled movements. These movements often result in
reduced vision and depth perception and can affect balance and
coordination.
One
of
the
causes
of
Nystagmus
is
MS.
11

1

no focal motor weakness with normal sensation, and a normal stance

2

and gait.

3

Plaintiff had no loss of sensation; normal focal motor sensation;

4

and normal attention, concentration, and had an intact short term

5
6
7

(AR 375-77).

memory.

(AR

examination

390-98,

Plaintiff

Subsequent examinations indicated that

411-12).
had

a

During
mild

a

December

antalgic

gait

27,
and

2012,
slight

hyperflexion, which were her most severe physical symptoms.

(AR

8

386).
9
10

Yet,

Plaintiff

asserts

that

the

objective

medical

record

11

supports Dr. Mahdad’s opinion because clinical findings showed that
12
13
14

Plaintiff suffers from exacerbations, ataxia, forgetfulness, blurred
vision, and gait issues.
symptoms

16

walking, and mental limitations that Dr. Mahdad opined.

17

August 10, 2012, examination with consultative examiner, Dr. Moore,

18

Plaintiff had normal ambulation and motor skills, diminished vision

19

in the right eye, a balance problem, abnormal tingling on her right

20

palm, and no indication that Plaintiff could not sit for extended

21

periods or control her upper extremities.

22

2012 MRI showed that Plaintiff had early signs of dementia, but

23

there is no medical evidence that this condition limits Plaintiff

25

not

correlate

to

the

from holding even a low-stress job.
psychological

evaluation

of

restrictive

Such generalized

15

24

do

(Joint Stip. at 5).

lifting,

(AR 379-82).

sitting,
During an

An October

Rather, a February 23, 2013,

Plaintiff

performed

by

clinical

26
27

http://www.aoa.org/patients-and-public/eye-and-visionproblems/glossary-of-eye-and-vision-conditions/nystagmus?sso=y.

28
12

1

psychologist, Dr. H. McGee, Ph.D., showed that Plaintiff had “mild

2

cognitive

3

deficits in processing, speed,” attention, and concentration, but

4

Plaintiff

was

reasoning

capacities

5
6
7

limitations

in

capable

her

of

were

ability

learning
adequate;

regular stress in competitive work.”
same

opinion,

(AR

a

64-68),

and

to

work,

routine,

and

was

ALJ

repetitive

“able

(AR 408).

the

displaying

to

mild

skill;

deal

with

Dr. Belzer held the

adopted

Dr.

Belzer’s

8

reasoning,

which

was

proper

given

the

clinical

findings.

9

Magallanes, 881 F.2d at 747 (an ALJ properly rejects a treating
10

physician’s opinion where the ALJ relies on contrary lab results,
11

examinations findings, and other physicians’ opinions).
12
13

Moreover, the ALJ made multiple attempts to develop the record.

14
15

The ALJ continued the second, April 2014, hearing in order to obtain

16

additional medical evidence from Dr. Mahdad.

17

some new records were submitted, there was still scant evidence to

18

support Dr. Mahdad’s opinion, and when the ALJ offered to schedule

19

another consultative examination, Plaintiff’s attorney rejected the

20

proposition.

(See AR 44-45).

While

(See AR 21, 69-70).

21
22
23
24
25
26

Lastly,

the

ALJ

appropriately

found

that

Dr.

Mahdad’s

speculation that Plaintiff was “unemployable” carried no probative
weight.
an

(AR 23, 463).

issue

reserved

physician's

opinion

Whether a claimant can work competitively is
specifically

on

this

issue

to
is

the
not

Commissioner,
entitled

to

and

a

special

27

significance.

20 C.F.R. § 404.1527(d)(1); Social Security Ruling

28

(“SSR”) 96-5p, 1996 WL 374183 (July 2, 1996) (medical source opinion
13

1

about

2

controlling

3

Barnhart, 420 F.3d 1002, 1004 (9th Cir. 2005) (“Although a treating

4

physician's opinion is generally afforded the greatest weight in

5
6
7

whether

a

claimant

weight

or

is

given

unable

to

special

work

is

not

significance);

entitled

to

Ukolov

v.

disability cases, it is not binding on an ALJ with respect to the
existence

of

disability.”)

an

impairment

(citation

or

omitted).

the

ultimate

Non-medical

determination
opinions

that

of
a

8

plaintiff is disabled or unable to work are not binding on the
9

Commissioner.

See Boardman v. Astrue, 286 Fed. Appx. 397, 399 (9th

10

Cir. 2008) (“[The] determination of a claimant's ultimate disability
11

is reserved to the Commissioner . . . a physician's opinion on the
12
13

matter is not entitled to special significance.”).

14
15

Accordingly, Plaintiff’s own statements regarding her physical

16

limitations which contradicted Dr. Mahdad’s opinion, the fact that

17

Dr. Mahdad’s own treatment notes failed to support his opinion, and

18

the medical record as a whole which showed mild abnormalities, were

19

all specific and legitimate reasons to reject Dr. Mahdad’s opinion.

20
21

2.

Dr. Horwitz

22
23
24
25
26

The ALJ properly rejected Dr. Horwitz’s opinion because it was
also contradicted by Plaintiff’s own statements.

As stated above,

an ALJ may reject the opinion of a treating physician where the
Plaintiff’s statements directly contradict the treating physician’s

27

assessment.

Magallanes, 881 F.2d at 747 (upholding ALJ's rejection

28

of treating physician's opinion that contradicted the claimant's own
14

1

testimony); Here, Dr. Horwitz opined that Plaintiff could only sit

2

for 4 hours in an 8-hour workday and that Plaintiff was incapable of

3

working a low-stress job.

4

could do a low-stress job where she sat for 8 hours in an 8-hour

5
6
7

workday.

(AR

428-33).

regarding

her

physical

However, Plaintiff testified that she

Accordingly,
limitations

Plaintiff’s

own

statements

contradicted

Dr.

Horwitz’s

opinion, which is a legitimate and specific reason to reject his

8

opinion.
9
10

The ALJ also rejected Dr. Horwitz’s opinion because it was not
11

supported by his own examination findings and the objective medical
12
13
14

record.

Magallanes, 881 F.2d at 747.

Although Dr. Horwitz opined

that Plaintiff cannot lift more than 20 pounds occasionally and 10

15

pounds frequently, can sit for 4 hours in an 8-hour workday, or

16

stand for 2 hours in an 8-hour workday, Dr. Horwitz’s examination

17

findings were minimal.

18

normal musculoskeletal system results, normal reflexes, and normal

19

neurological findings, with the exception of loss of sensation in

20

the right thigh and “mild” lack of coordination on the left side.

21

Plaintiff’s chief complaint for the visit was headaches.

22

37).

23

treatment notes only list Plaintiff’s medications.

24
25
26

The

A March 2014 examination of Plaintiff showed

(AR 436-

Plaintiff attended a follow-up visit with Dr. Horwitz, but

record

Horwitz.

does

not

otherwise

contain

treatment

(AR 478-79).
notes

from

Dr.

Thus, the severe limitations that Dr. Horwitz’ found were

not supported by the medical record and the mild irregularities that

27

were documented.

Accordingly, the ALJ gave specific and legitimate

28

reasons to reject the opinion of Dr. Horwitz.
15

1

3.

Dr. Tu

2
3

The ALJ appropriately found Dr. Tu’s opinion that Plaintiff

4

cannot work carried no probative weight.

5

Whether a claimant can work is an issue reserved specifically for

6

the Commissioner, and a physician's opinion on this issue is not

7

entitled

to

8

Ukolov,

420

9

Accordingly, the ALJ gave a specific and legitimate reason to reject

10

Dr. Tu’s opinion where Dr. Tu opined only that Plaintiff could not

11

work.

special
F.3d

significance.

at

1004;

20

Boardman,

(AR 23, 410, 413, 416-20).

C.F.R.
286

§

404.1527(d)(1);

Fed.

Appx.

at

399.

12
13
14

B.

The ALJ Properly Found That Plaintiff Could Perform The Job Of
Addresser

15
16

Plaintiff contends that the ALJ erred in finding that she could

17

perform the occupations of addresser (DOT 209.587-010) and order

18

clerk (DOT 209.567-014), because Plaintiff’s RFC conflicts with the

19

the required level of reasoning for both jobs as described in the

20

DOT. (Joint Stip. at 16-18, 21).

21

performing “simple tasks with simple work related decisions,” (AR

22

18), which precludes her from performing jobs that require level 2

23

or 3 reasoning skills.

24

description for addresser and order clerk require level 2 and 3

25

reasoning

26

jobs.

27

recognize and then reconcile the conflict between these jobs and

28

Plaintiff’s RFC, the ALJ committed reversible error.

skills

(Id.).

Plaintiff’s RFC limits her to

(Joint Stip. at 17-18).

respectively,
Plaintiff

Plaintiff

asserts

16

that

could
because

Because the DOT

not

perform

the

ALJ

(Id.).

these

did

not

1

In

considering

potential

occupations

that

a

claimant

could

2

perform, the ALJ relies on the DOT and VE testimony.

3

416.966(e); Zavalin v. Colvin, 778 F.3d 842, 845-46 (9th Cir. 2015);

4

Valentine, 574 F.3d at 689.

“When there is an apparent conflict

5

between

and

6

testimony that a claimant can perform an occupation involving DOT

7

requirements that appear to be more than the claimant can handle —

8

the ALJ is required to reconcile the inconsistency.”

9

F.3d at 846 (citing Massachi v. Astrue, 486 F.3d 1149, 1153–54 (9th

the

[VE’s]

testimony

the

DOT

—

for

20 C.F.R. §

example,

expert

Zavalin, 778

10

Cir. 2007).

An ALJ's failure to inquire into an apparent conflict

11

is harmless where there is no actual conflict between the RFC and

12

the DOT.

13

(citing Massachi, 486 F.3d at 1154 n. 19).

Ranstrom v. Colvin, 622 F. App'x 687, 689 (9th Cir. 2015)

14

Here,

15

the
of

VE

testified

addresser

that

209.567-014),

18

conflicted with the DOT.

19

testimony did not conflict with the DOT.

20

the VE’s testimony.

21

requires Level 25 Reasoning and the DOT description for order clerk

22

requires Level 36 Reasoning.

asked

whether

(AR 89-90).

(See AR 25).

the

order
VE’s

clerk

the

17

ALJ

and

perform

occupations

the

209.587-010)

could

16

and

(DOT

Plaintiff

(DOT

testimony

The VE responded that her
(AR 90).

The ALJ adopted

The DOT description for addresser

See ADDRESSER, DOT 209.587-010; ORDER

23
24
25
26
27
28

5

The DOT defines Level 2 Reasoning as “[a]pply[ing] commonsense
understanding to carry out detailed but uninvolved written or oral
instructions. Deal with problems involving a few concrete variables
in or from standardized situations.” ADDRESSER, DICOT 209.587-010.
6

The DOT defines Level 3 Reasoning as “[a]pply[ing] commonsense
understanding to carry out instructions furnished in written, oral,
or diagrammatic form. Deal with problems involving several concrete
17

1

CLERK,

2

Plaintiff

3

object oriented and no inherently stressful jobs such as taking

4

complaints.”

FOOD
to

AND

BEVERAGE,

“simple

tasks

DOT

209.567-014.

with

simple

The

work

ALJ

related

limited

decisions,

(AR 18).

5
6

Plaintiff relies on Rounds v. Comm’r of Soc. Sec. Admin., 807

7

F.3d 996, 1002 (9th Cir. 2015) to assert that a person who is

8

limited to performing “simple tasks” cannot perform jobs, such as

9

addresser, which require Level 2 reasoning.
the

holding

10

However,

11

represents.

12

performing “one to two-step tasks,” not “simple tasks.”

13

Rounds, 807 F.3d at 1001; with (AR 18).

14

“there was an apparent conflict between Round’s RFC, which limited

15

her to performing one -and two-step tasks, and the demands of Level

16

[2]

17

understanding to carry out detailed but uninvolved written or oral

18

instructions.’”

19

1991 WL 688702).

20

Level 1 reasoning, which requires a person to apply “commonsense

21

understanding to carry out simple one – or two-step instructions,”

22

supported the court’s finding that Rounds could only perform jobs

23

that require Level 1 reasoning.

24

perform simple tasks, instead of only one and two-step tasks, which

In

in

Rounds,

reasoning, which

Rounds
the

requires

is

(Joint Stip. at 17).

narrower

plaintiff’s

a

RFC

than

Plaintiff

limited

her

to

Compare

The court concluded that

person

to

‘[a]pply

commonsense

Rounds, 807 F.3d at 1003 (citing DOT, App. C, § 3,
The “obvious similarity” between Round’s RFC and

Id.

Here, Plaintiff is able to

25
26
27

variables in or from standardized situations.”
AND BEVERAGE, DICOT 209.567-014.

28
18

ORDER CLERK, FOOD

1

distinguishes Plaintiff’s mental limitations from the claimant in

2

Rounds.

3
4

Moreover, courts have found that a person who is limited to

5

“simple tasks” can perform jobs that require Level 2 reasoning.

6

See, e.g., Hackett v. Barnahart, 395 F.3d 1168, 1176 (10th Cir.

7

2005) (“[L]evel-[2] reasoning appears

8

Plaintiff's [residual functional capacity]” to perform “simple and

9

routine work”); Meissl v. Barnhart, 403 F. Supp. 2d 981, 984 (C.D.
2005)

(finding

consistent

Cal.

11

“simple tasks . . . that had some element of repetitiveness to them”

12

indicated a reasoning level of 2); Bowman v. Colvin, __ F.Supp.3d

13

__, 2017 WL 66390, at *15 (D. Or. 2017) (“Level [2] allows for the

14

performance

15

complex . . . when the RFC [limiting someone to simple tasks] is

16

compared

17

reasoning, it is clear that the RFC here aligns with Level [2] and

18

not

19

simple

20

Plaintiff could perform the job of addresser, a Level 2 reasoning

21

occupation.

to

Level

detailed

the

definitions

[3].”).

tasks,

but

the

plaintiff's

simple

of

ALJ

properly

instructions

both

Accordingly,

ability

Level

because
adopted

to

with

10

of

that

more

which

[2]

and

Plaintiff
the

VE’s

perform

are

Level

could

not

[3]

perform

testimony

that

22

The ALJ erred in adopting the VE’s testimony that Plaintiff

23
24

could

perform

25

occupation.

26

between

27

repetitive tasks, and the demands of Level 3 Reasoning”).

28

failed to resolve this conflict.

the

the

job

of

order

clerk,

a

Level

3

reasoning

Zavalin, 778 F.3d at 847 (finding “an apparent conflict
residual

functional

capacity

(See AR 25).
19

to

perform

simple,
The ALJ

However, this error

1

was harmless because the ALJ also identified a Level 2 reasoning job

2

— addresser — that Plaintiff could perform.

3

Sec., 454 F.3d 1050, 1055 (9th Cir. 2006) (ALJ errors are harmless

4

when they are inconsequential to a non-disability finding); Burch v.

5

Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (an ALJ's decision will

6

not be reversed for harmless error); Curry v. Sullivan, 925 F.2d

7

1127, 1131 (9th Cir. 1991) (harmless error rule applies to review of

8

ALJ decisions regarding disability).

Stout v. Comm'r of Soc.

9
10

C.

The

ALJ

Articulated

Clear

And

Convincing

Reasons

To

Find

Plaintiff Not Credible

11
12

Plaintiff

13

asserts

that

the

ALJ

improperly

found

her

not

14

credible for the following reasons: (1) the medical record suggests

15

that Plaintiff has a disabling condition because she had a visiting

16

nurse come to her home; (2) the ALJ exhibited a gender bias in

17

finding that Plaintiff was not credible because she did not take MS

18

medication while pregnant; and (3) the ALJ gave too much weight to

19

Plaintiff’s

20

supporting Plaintiff’s credibility.

daily

activities

when

compared

to

other

factors

(Joint Stip. at 22-25, 32-33).

21

Defendant contends that the ALJ provided the following clear

22
23

and

convincing

reasons

24

objective

25

Plaintiff made inconsistent statements regarding the severity of her

26

condition;

27

physical

28

considered

record

(3)

did

to
not

Plaintiff’s

ability

than

Plaintiff’s

she

find

Plaintiff

support

daily

Plaintiff’s

activities

claimed;

failure

to
20

not

and

take

MS

(1)

statements;

demonstrated

(4)

her

credible:

the

ALJ

the
(2)

greater
properly

medication

while

1

pregnant because an ALJ may consider the medications a claimant

2

takes when making a credibility determination.

3

30).

(Joint Stip. at 25-

4
5

A claimant initially must produce objective medical evidence

6

establishing a medical impairment reasonably likely to be the cause

7

of his subjective symptoms.

8

(9th Cir. 1996); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir.

9

1991).

Smolen v. Chater, 80 F.3d 1273, 1281

Once a claimant produces objective medical evidence of an

10

underlying impairment that could reasonably be expected to produce

11

pain

12

malingering, the ALJ may reject the claimant’s testimony regarding

13

the severity of his pain and symptoms only by articulating specific,

14

clear, and convincing reasons for doing so.

15

806 F.3d 487, 492-93 (9th Cir. 2015) (citing Lingenfelter v. Astrue,

16

504 F.3d 1028, 1036 (9th Cir. 2007)).

17

of malingering, the “clear and convincing reasons” standard applies.

or

other

symptoms

alleged,

and

there

is

no

evidence

of

Brown-Hunter v. Colvin,

Because there is no evidence

18

In

19

her

disability

application,

Plaintiff

asserted

that

she

20

cannot work because she has MS that causes debilitating symptoms,

21

including

22

right

23

Information form that she needs help showering and bathing; has no

24

energy

25

standing; and either stays at home or walks to the park with her

26

daughter.

27

hearing

28

forgetfulness, and a loss of appetite, which makes her weak and

seizures,

eye.

to

(AR

clean

288).

but

(AR 325).

that

she

severe

migraines,
Plaintiff

can

cook

and

blurred

stated

easy

meals

in

that

vision

an

do

in

Updated

not

the
Work

require

Plaintiff testified at the third, July 2014,

suffers

from

dizzy

21

spells

on

a

daily

basis;

1

causes headaches; needs help to clean and cook; on a normal day,

2

lays and watches television; and leaves the house once every other

3

day to go to church or the grocery store.

(AR 70-72, 75-76).

4

The ALJ found Plaintiff not credible for the following reasons:

5
6

(1)

the

objective

7

assertions of debilitating symptoms; (2) Plaintiff made inconsistent

8

statements regarding her ability to work at a low-stress, sedentary

9

job; (3) Plaintiff did not take her MS medication while pregnant and
condition

medical

remained

record

support

11

diagnosed with MS in 2000, she had several jobs and worked after her

12

May 2009 onset date, until August 2009; and (5) Plaintiff’s daily

13

activities

14

alleged.

she

had

although

Plaintiff’s

her

that

(4)

not

10

indicated

unchanged;

did

greater

Plaintiff

abilities

than

was

she

(AR 19-21).

15
16

First, the ALJ properly found that the medical evidence did not

17

support Plaintiff’s statements.

The ALJ noted that “[c]learly, the

18

claimant has MS,” but “the record does not show severity . . . ”

19

(AR 21).

20

showed largely normal results regarding Plaintiff’s motor strength

21

and ability to ambulate.

(AR 20).

22

“small to large areas of

abnormal

23

throughout . . . ” the brain, “consistent with history of MS and

24

moderate degree of diffuse generalized volume loss, advanced for

25

patient’s age,” but the MRI did not correlate to the severity of the

26

condition,

27

indicated that Plaintiff had mild optic neuritis in the left eye and

28

neuritis

Examinations with Dr. Mahdad, Dr. Moore, and Dr. Horwitz

just

in

the

its

presence.

right

eye,

The October 2012 MRI showed
T2/flair

(Id.).

which
22

left

hyper

intensities

Ophthalmologist

Plaintiff’s

records

right

eye

1

significantly

2

asserts, she was seen by a visiting nurse, but “just because one has

3

a visiting nurse, it does not mean one is disabled.”

impaired

and

left

eye

normal,

and,

as

Plaintiff

(AR 20-21).

4

The ALJ’s summary of the evidence reflects the record as a

5
6

whole.

A MRI of Plaintiff’s brain showed MS and early signs of

7

dementia, but a psychological evaluation concluded that Plaintiff

8

had

9

regular

only

mild

cognitive

stress

that

limitations

requires

using

and
a

could

routine,

hold

a

job

repetitive

with

skill.

10

(See AR 388, 408).

11

visual

12

perception, but it does not preclude her from all work.

13

Moreover,

14

encompassed examinations conducted by Dr. Horwitz and Dr. Mahdad,

15

had

16

intermittently complained of dizziness and headaches, but not to the

17

constant degree that Plaintiff asserts.

18

of

19

physical

20

Plaintiff was not credible.

21

lack of objective medical evidence cannot form the sole basis for

22

discounting pain testimony, it is a factor that the ALJ can consider

23

in his credibility analysis.”).

impairment

the

normal

As the ALJ noted, Plaintiff has a significant
in

her

objective

findings.

objective
and

medical
mental

right

eye,

medical

Nurse

evidence

limitations

which

affects

evidence,

records

her

(AR 64-65).

which

show

that

(See AR 470-79).

regarding
supports

Plaintiff’s
the

ALJ’s

depth

primarily

Plaintiff

The lack
disabling

finding

that

Burch, 400 F.3d at 680-81 (“Although

24

Moreover, the mere fact that Plaintiff was seen by a visiting

25
26

nurse

does

not

constitute

27

Plaintiff’s

28

clinical findings, physical examinations, or tests done by a medical

allegations.

objective
Objective

23

medical
medical

evidence
evidence

supporting
includes

1

source,

2

supporting

3

evidence,

4

notes.

5

2004) (treating physician notes did not provide objective medical

6

evidence of alleged limitation); Thomas, 278 F.3d at 957 (ALJ need

7

not accept treating physician's opinion if inadequately supported

8

by clinical findings).

9

with Plaintiff’s statements.

which
a

establishes
finding

an

ALJ

may

of
give

a

condition

disability.
no

weight

and

related

Without
to

a

symptoms

such

objective

physician’s

treatment

See Batson v. Comm’r, 359 F.3d 1190, 1195 n. 3 (9th Cir.

Accordingly, the record is not consistent

10

Second, the ALJ properly found Plaintiff’s testimony that she

11
12

could

do

13

allegations

14

regarding a Plaintiff’s functional limitations provide a clear and

15

convincing reason to find a plaintiff not credible.

16

at

17

credibility

18

statements to her doctors); see also Brown v. Astrue, 405 F. App'x

19

230, 233 (9th Cir. 2010).

20

sedentary job, “if easy and repetitive, and not stressful.”

21

21).

22

is lay and watch television because of constant, severe headaches

23

and dizzy spells. (AR 70-72, 75-76, 325).

24

contradicts her previous statements.

25

clear

26

credible where Plaintiff testified that she could hold a sedentary,

27

low-stress job.

1284;

a

low-stress,
of

See

sedentary

disabling

Thomas,

finding

symptoms.

278

in

job

F.3d

part

at

due

to

inconsistent
Inconsistent

959
a

with

her

statements

Smolen, 80 F.3d

(upholding
claimant's

an

adverse

inconsistent

Plaintiff testified that she could do a
(AR

Yet, Plaintiff also stated that on a normal day all she can do

and

convincing

reason

to

find

28
24

Plaintiff’s testimony

Accordingly, the ALJ gave a
Plaintiff’s

statements

not

1

Third, the ALJ improperly found Plaintiff not credible because

2

she did not take her MS medication, Rebif, while pregnant.

3

21).

4

(a)

5

Plaintiff’s

6

Plaintiff’s condition was not as severe as claimed.

7

address both interpretations.

(See AR

It is not clear whether the ALJ provided this reason because
Plaintiff

failed
condition

to

follow
remained

prescribed
unchanged,

treatment,

or

indicating

(b)
that

The Court will

8
9

It is improper to discount a claimant's credibility on the

10

basis of failure to pursue medical treatment when the claimant “has

11

a good reason for not” doing so.

12

Security Admin., 533 F.3d 1155, 1162 (9th Cir. 2008); see also SSR

13

96–7p, 1996 WL 374186, at *7 (ALJ must not draw inferences about

14

claimant's symptoms and their functional effects from failure to

15

follow

16

explanations provided or other information in the record that may

17

explain that failure).

18

stopped taking Rebif while pregnant and did not make any objections

19

in his treatment notes. (See AR 375).

20

pregnancy was an explanation for Plaintiff to not take Rebif for a

21

period of time.

prescribed

treatment,

Carmickle v. Commissioner, Social

without

first

considering

any

Here, Dr. Mahdad was aware that Plaintiff

Accordingly, Plaintiff’s

22
23

Alternatively, the ALJ improperly substituted his judgment for

24

that of the medical evidence in interpreting Plaintiff’s physical

25

condition while she was not taking Rebif.

26

medical evidence with his own judgment, and such speculation cannot

27

support an inference on which an ALJ’s credibility determination

28

depends.

An ALJ cannot substitute

Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975)
25

1

(an ALJ who is not qualified as a medical expert cannot make “his

2

own

3

condition”); see also Rohan v. Chater, 98 F.3d 966, 970–71 (7th Cir.

4

1996) (ALJ may not rely on his own lay opinion regarding medical

5

matters); Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir. 1995)

6

(same); Miller v. Astrue, 695 F. Supp. 2d 1042, 1048 (C.D. Cal.

7

2010) (same); cf. Rudder v. Colvin, 2014 WL 3773565, at *12 (N.D.

8

Ill. 2014) (“The ALJ may be correct that disabling limitations from

9

multiple sclerosis would result in more frequent treatment or need

exploration

and

assessment

as

to

[the]

claimant's

physical

10

for medication.

However, the ALJ must include evidence to support

11

such a conclusion in his opinion because he is not qualified, on his

12

own, to make such determinations”).

13
14

Here, the ALJ viewed Plaintiff’s apparent stabilized condition

15

while she was pregnant and not taking Rebif as a reason to discredit

16

Plaintiff’s MS symptoms.

17

whether

18

whether Plaintiff’s symptoms should have been worse while not on

19

Rebif.

20

the need for such medications or opine on how stable a claimant’s

21

condition should be.

22

was not credible because she did not take her MS medication while

23

she was

24

Plaintiff not credible.

25

Plaintiff’s

Yet, the medical record does not address

condition

was

stable

during

this

time,

or

Because the ALJ is not a medical expert, he cannot assess

Accordingly, the ALJ’s finding that Plaintiff

pregnant was not a clear and convincing reason to find

Fourth,

the

ALJ

improperly

found

that

Plaintiff

was

not

26

credible because she had a failed work attempt after her onset date.

27

(AR 21).

28

distinguished

A failed work attempt versus the ability to work is
under

42

USC

§

422(c);
26

SSR

84-25.

A

plaintiff's

1

unsuccessful work attempt is not a clear and convincing reason to

2

conclude that her symptoms would not preclude consistent employment.

3

Lingenfelter, 504 F.3d at 1028 (ALJ erred in relying on period of

4

work

5

Accordingly,

6

convincing reason to reject Plaintiff’s pain testimony.

as

proof

that

a

Plaintiff’s

claimant’s
attempt

to

pain
work

was
is

not
not

disabling).
a

clear

and

7

Fifth, the ALJ properly found that Plaintiff’s daily activities

8
9

undermined her credibility.
claimant

10

found

11

that she was quite functional).

12

fatigue, headaches, dizziness, and lack of coordination.

13

76).

14

Plaintiff

15

washing dishes; sometimes cleaning; going to church, the grocery

16

store, and the beach; and babysitting her friend’s children four

17

times

18

Plaintiff had good exercise habits and did normal activities of

19

daily living.

20

was a clear and convincing reason to find Plaintiff not credible.

Yet,

not

during

reported

per

credible

Burch, 400 F.3d at 680 (ALJ properly

month.

a

(AR 436).

her daily

activities suggested

Plaintiff describes having severe

February

reading;

(AR

where

2013

cooking;

405).

Dr.

consultative

using

a

Horwitz

(AR 70-74,
examination,

computer;

also

sometimes

reported

that

Accordingly, Plaintiff’s daily activities

21
22

In sum, the ALJ articulated clear and convincing reasons to

23

find Plaintiff not credible: the medical evidence did not support

24

Plaintiff’s statements; Plaintiff testified that she could perform a

25

low-stress,

26

living

27

asserted.

28

not credible in citing Plaintiff’s decision to not take Rebif while

sedentary

revealed

that

job;

and

Plaintiff

Plaintiff’s
had

greater

activities
abilities

of

daily

than

she

The ALJ also provided improper reasons to find Plaintiff

27

1

pregnant and her failed work attempt.

2

such

3

convincing reasons to find Plaintiff not credible.

4

F.3d at 1162.

error

harmless,

since

the

However, the Court finds any

ALJ

provided

other

clear

and

Carmickle, 533

5
6

D.

The ALJ Properly Found Lay Witness Testimony Not Credible

7

Plaintiff

8
9

asserts

that

the

Plaintiff’s mother’s testimony.
contends

that

the

ALJ

failed

to

properly

consider

(See Joint Stip. at 24-25, 33).

10

Defendant

ALJ

provided

11

rejecting Plaintiff’s mother’s testimony.

12

germane

reasons

for

32).

(See Joint Stip. at 30-

13
14

The ALJ is required to give germane reasons for rejecting lay

15

witness

testimony.

See

Carmickle,

533

F.3d

at

1164;

Greger

v.

16

Barnhart, 464 F.3d 968, 972 (9th Cir. 2006); Lewis v. Apfel, 236

17

F.3d 503, 511 (9th Cir. 2001); Smolen, 80 F.3d at 1288-89.

18
19

Here, the ALJ gave a germane reason for rejecting Plaintiff’s

20

mother’s testimony because it was inconsistent with the objective

21

medical evidence.

22

Cir. 2015) (inconsistency with the medical evidence is a germane

23

reason for discrediting the testimony of a lay witness); Lewis, 236

24

F.3d at 511 (“One reason for which an ALJ may discount lay testimony

25

is that it conflicts with medical evidence.”); Vincent v. Heckler,

26

739 F.2d 1393, 1395 (9th Cir. 1984) (“The ALJ properly discounted

27

lay witness testimony that conflicted with the available medical

28

evidence.”).

See Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th

28

1
2

However,

the

ALJ

erred

in

discrediting

Plaintiff’s

mother’s

3

statements

4

bias. “[L]ack of medical expertise and family bias are not germane

5

reasons to reject lay witness testimony.

6

1113, 1116 (9th Cir. 2009) (ALJ cannot reject law witness testimony

7

because of lack of medical training or family bias).

8

error was harmless because he provided another germane reason to

9

reject

because

Plaintiff’s

she

lacks

mother’s

medical

testimony

expertise

and

has

familial

Bruce v. Astrue, 557 F.3d

in

finding

The ALJ’s

that

it

was

10

inconsistent with the medical record.

11

F.3d 1035, 1038 (9th Cir. 2008) (citation and quotation omitted)

12

("The court will not reverse an ALJ's decision for harmless error,

13

which exists when it is clear from the record that the ALJ's error

14

was inconsequential to the ultimate nondisability determination.").

15

\\

16

\\

17

\\

18
19
20
21
22
23
24
25
26
27
28
29

Tommasetti v. Astrue , 533

1

CONCLUSION

2
3
4

For the foregoing reasons, the decision of the Commissioner is
AFFIRMED.

5
6

LET JUDGMENT BE ENTERED ACCORDINGLY.

7
8

Dated: May 10, 2017

9
10
11
12

_____________/s/______________
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
30