Patricia James v. Michael J. Astrue, No. 5:2011cv01471 - Document 19 (C.D. Cal. 2012)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal; IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. See order for details. (jy)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 PATRICIA JAMES, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the Social ) Security Administration, ) ) Defendant. ) ______________________________) NO. EDCV 11-01471-SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Patricia James ( Plaintiff ) brings this action seeking to overturn 22 the decision of the Commissioner of the Social Security Administration 23 (hereinafter the Commissioner or the Agency ) denying her application 24 for Supplemental Security Income ( SSI ). 25 pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned 26 United States Magistrate Judge. 27 decision of the Commissioner is AFFIRMED. 28 The parties consented, For the reasons stated below, the 1 II. 2 PROCEDURAL HISTORY 3 4 Plaintiff filed an application for SSI on April 30, 2007. 5 (Administrative Record ( AR ) 14, 56-57). She alleged a disability 6 onset date of April 24, 2007 (AR 14, 107), for arthritis, a left arm 7 injury, and depression. (AR 106-07). 8 9 The Agency denied Plaintiff s application initially on October 9, 10 2007, and on reconsideration on December 20, 2007. (AR 58-62, 66-70). 11 Plaintiff then requested a hearing, which was held before Administrative 12 Law Judge ( ALJ ) Lowell Fortune on March 20, 2009. (AR 22). Plaintiff 13 appeared with counsel and testified at the hearing. (AR 22-55). 14 15 On September 9, 2009, the ALJ issued a decision denying benefits. 16 (AR 14-21). Plaintiff sought review of the ALJ s decision before the 17 Appeals Council (AR 9-10), which denied her request on July 19, 2011. 18 (AR 1-4). Plaintiff commenced the instant action on September 19, 2011. 19 20 III. 21 FACTUAL BACKGROUND 22 23 Plaintiff was born on August 21, 1961, and was forty-seven years 24 old at the time of the hearing. (AR 26). 25 education, and speaks, reads, and writes English. 26 Plaintiff s past work experience has been as a janitor. 27 28 2 She has a twelfth-grade (AR 48, 106, 110). (AR 107-08). 1 A. Plaintiff s Medical History 2 3 Plaintiff arrived at the emergency room of Arrowhead Regional 4 Medical Center ( ARMC ) on June 11, 2007, complaining of back and hip 5 pain. 6 normal. 7 usually improves greatly with conservative treatment. (See AR 134-36). (AR 207). X-rays of her lumbar spine and right hip were She was diagnosed with sciatica, a condition that (AR 135). 8 9 On January 8, 2008, Plaintiff was assessed by Drs. Miulli and 10 Panchal in the Neurosurgery Clinic at ARMC. 11 Plaintiff s chief complaint of lower back pain and performed a 12 physical and neurological examination. 13 showed degenerative disk disease with mild central canal stenosis [at] 14 L3 through 4 and [d]egenerative disk disease and facet joint disease 15 with moderate central canal and neural foraminal stenosis at L4 through 16 5. 17 L3 radiculitis with possible radiculopathy versus pain and a [p]soas 18 spur. 19 physician to begin treatment with Naprosyn and Robaxin, that Plaintiff 20 receive nerve stimulation treatment, and that she receive physical 21 therapy three times per week. (AR 202; see AR 204-06). (AR 203). (AR 202-03). They noted They also noted that an MRI They diagnosed Plaintiff with [r]ight They recommended that Plaintiff see her primary care (Id.). 22 23 Plaintiff underwent an outpatient physical therapy evaluation at 24 ARMC that day (January 8, 2008). (AR 197-98). 25 pain in her back and was found to have limited and painful rotation 26 of her hips and limited range of motion in her lumbar spine. (AR 197). 27 The physical therapist believed Plaintiff s rehab potential was fair 28 and that a limiting factor was her compliance. 3 Plaintiff complained of (AR 198). 1 A medical report completed by N. Pham at the San Bernardino 2 Transitional Assistance Department on September 30, 2008, relayed that 3 Plaintiff was temporarily incapacitated due to low back pain from 4 September 30, 2008, through January 30, 2009. 5 were necessary before the degree and permanence of the incapacity 6 [could] be determined. (Id.). There do not appear to be any treatment 7 notes accompanying this report. (AR 224). More tests 8 9 Plaintiff was evaluated by Dr. Jothen on November 25, 2008. 10 was diagnosed with degenerative disk disease and herniated nucleus 11 pulposus at L3-L4 and L4-L5. 12 receive an epidural facet joint block and follow up with her primary 13 care physician for pain control. 14 joint injections on January 6, 2009. (AR 221). (Id.). She It was recommended that she Dr. Miulli recommended facet (AR 220). 15 16 On February 5, 2009, Plaintiff was seen at ARMC for an initial 17 consultation for chronic pain. (AR 216-17). She was diagnosed with 18 an L4-L5 disk bulge with mild to moderate facet hypertrophy, mild to 19 moderate canal stenosis, [b]ilateral neuroforaminal stenosis, and 20 [m]ultiple degenerative disk disease canal foraminal stenosis. 21 217). 22 she received on February 18, 2009 (AR 215), [c]autioned on overuse of 23 narcotics, and prescribed ibuprofen and Neurontin. (AR Plaintiff was scheduled for epidural steroid injections, which (AR 217). 24 25 On February 24, 2009, a nurse practitioner at ARMC Rehabilitation 26 Services evaluated Plaintiff for use of a front wheel walker. Plaintiff 27 was noted to have an unsteady gait and bilateral lower extremity 28 weakness. Plaintiff s goals were to increase strength and become 4 1 capable of independent ambulation. (AR 225). Plaintiff was prescribed 2 a front wheel walker on April 9, 2009. (AR 227). 3 4 On January 21, 2011, Plaintiff underwent surgery at ARMC to excise 5 an intervertebral disc (laminectomy).1 6 [d]isplacement of lumbar intervertebral disc without myelopathy. (AR 7 236, see 535-37). She also had L3-L4 and L4-L5 stenosis, and left L4-L5 8 radiculitis and radiculopathy with failed nonoperative treatment in the 9 past. (AR 535). The surgeons found that Plaintiff had severe central 10 canal and lateral foraminal stenosis at L3, L4 and L5, severe 11 degenerative disk disease, and that the disk space was so small [they] 12 could barely get [their] instruments into the disk space. 13 Plaintiff did well after her operation and [a]ggressive physical 14 therapy was sought. 15 assistance when she was discharged from the hospital on January 29, 16 2011. (AR 329). Her principal diagnosis was (Id.). She was ambulating with a walker and (AR 331; see AR 329). 17 18 B. Examining and Non-Examining Physicians 19 20 Dr. William Boeck performed a consultative orthopedic examination 21 on September 25, 2007. (AR 169-73). He noted that Plaintiff had low 22 back pain, persistent hip pain, and multiple disc bulges. 23 Plaintiff was currently taking Norco, Soma and Motrin for pain. 24 Plaintiff had a normal stance and walked evenly without a limp. 25 170). (AR 169). (Id.). (AR She complained of pain to palpation around her lumbar spine. 26 27 1 28 The Appeals Council made this evidence, generated almost two years after Plaintiff s hearing, part of the record. (AR 5-6). 5 1 (Id.). The range of motion in her back was limited. 2 Plaintiff readily [came] to a seated position on the examining table 3 and there were free motions in the cervical spine. 4 of motion was normal in her shoulders, right elbow, and wrists. 5 Plaintiff was also able to readily come[] to a recumbent position face 6 up on the examining table, and the ranges of motion in her hips, knees, 7 ankles, and feet were normal. 8 tenderness to palpation around her right hip. (AR 172). (AR 170, 173). (AR 171). Range (Id.). She did have marked (Id.). 9 10 Dr. Boeck concluded that the only positive findings from his 11 examinations were the limited motion in Plaintiff s lumbar spine, the 12 marked tenderness around her right hip, and an old deformity at the 13 left elbow. 14 changes of the lumbar spine and bursitis of the right hip. 15 opined that Plaintiff could lift and carry 50 pounds occasionally, 25 16 pounds frequently, stand and walk 6 hours in an 8-hour day, [and] sit 17 6 hours in an 8-hour day. (AR 173). He diagnosed Plaintiff with accumulated (Id.). He (Id.). 18 19 On October 4, 2007, medical consultant George G. Spellman reviewed 20 Plaintiff s medical records and issued a Physical Residual Functional 21 Capacity2 ( RFC ) Assessment. 22 Plaintiff could occasionally lift and/or carry fifty pounds, could 23 frequently lift and/or carry twenty-five pounds, could stand, walk or 24 sit for about six hours per eight hour work day, and had unlimited (AR 189-93). Dr. Spellman reported that 25 26 27 28 2 Residual functional capacity is the most [one] can still do despite [one s] limitations and represents an assessment based on all the relevant evidence in [one s] case record. 20 C.F.R. §§ 404.1545(a), 416.945(a). 6 1 pushing and pulling abilities. 2 indicated 3 communicative, or environmental limitations. (AR 190-92). He believed 4 Plaintiff s allegations were only partially credible. 5 Another non-examining physician agreed with Dr. Spellman s assessment. 6 (AR 194-95). that Plaintiff had (AR 190). no postural, Dr. Spellman further manipulative, visual, (AR 193). 7 8 9 Dr. Linda Smith performed a psychiatric consultative examination of Plaintiff on September 18, 2007. (AR 162-67). Dr. Smith diagnosed 10 Plaintiff with Depressive Disorder, Not Otherwise Specified, but 11 concluded Plaintiff would not be impaired to work from a psychiatric 12 standpoint and had no mental functional limitations. 13 State Agency physician reviewed the evidence and concluded Plaintiff did 14 not have a severe psychiatric impairment. (AR 166-67). A (AR 176-88). 15 16 C. Plaintiff s Testimony 17 18 Before the ALJ, Plaintiff testified that she had back pain and that 19 her spine was twisted and her discs were deteriorating. 20 She felt knots in her back and could barely move. 21 rated the level of pain at eight out of ten, and testified that she felt 22 it constantly. 23 did not help. 24 and elbow kept her from working. 25 was experiencing bilateral leg pain and sometimes had difficulty moving 26 her legs. 27 to sit, stand, or lay for very long. 28 becoming depressed because [t]he pain hurts so bad. (AR 38, 42). (AR 39, 42). (AR 33, 40-41). (AR 32-33). (AR 37). She She took medications for the pain but they She also stated that problems with her hip (AR 33, 40). In addition, Plaintiff She testified that it was difficult for her 7 (AR 33, 43). Moreover, she was (AR 34; see AR 1 44). Plaintiff had a tendency to lose her balance four or five times 2 a day and began using a walker shortly before the hearing. 3 40). 4 before the hearing. 5 needed help taking a shower and getting dressed. (AR 29-30, In addition, she had [e]ight pain shots in her spine the week (AR 41-42). She did no chores around the house and (AR 45). 6 7 Plaintiff testified that she did about twenty hours per week of 8 yard work for her boyfriend s company until April or May of 2007. 9 AR 27-29). 10 IRS. (See She was paid in cash and did not report her earnings to the (RT 28-29). 11 12 Plaintiff testified that she had tested positive for codeine or 13 cocaine the month before the hearing. (AR 34-35). She then admitted 14 that she used cocaine in February 2009, but denied using any illegal 15 drugs in 2007 or 2008. (AR 36-37). 16 17 D. Third Party Report 18 19 Charles Vance, Plaintiff s roommate and boyfriend, completed a 20 Function Report - Adult - Third Party. 21 Plaintiff spent her days eating, showering, watching television, taking 22 medication, going on short walks, visiting neighbors, and taking naps, 23 and that she spent most of the time resting on the couch. 24 Plaintiff was able to do yard work, play with her grandchildren, and 25 prepare home-cooked meals before she became disabled. (AR 120-21). She 26 was unable to lift and could not stand very long. 27 also had trouble with [her] legs going out and need[ed] help getting 28 up. (AR 123). Her disability interfered with numerous of her physical 8 (AR 119-26). He wrote that (AR 119). (AR 121). She 1 abilities, and she could not walk very far before needing to rest. 2 124). 3 completed by Plaintiff. (AR Vance s report largely echoed a Function Report - Adult (See AR 127-34). 4 5 IV. 6 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 7 8 To qualify for disability benefits, a claimant must demonstrate a 9 medically determinable physical or mental impairment that prevents her 10 from engaging in substantial gainful activity3 and that is expected to 11 result in death or to last for a continuous period of at least twelve 12 months. 13 U.S.C. § 14 incapable of performing the work he previously performed and incapable 15 of performing any other substantial gainful employment that exists in 16 the national economy. 17 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 423(d)(1)(A)). The impairment must render the claimant Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 18 19 To decide if a claimant is entitled to benefits, an ALJ conducts a 20 five-step inquiry. 21 20 C.F.R. §§ 404.1520, 416.920. The steps are as follows: 22 23 (1) Is the claimant presently engaged in substantial gainful 24 activity? If so, the claimant is found not disabled. If 25 not, proceed to step two. 26 27 28 3 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay or profit. 20 C.F.R. §§ 404.1510, 416.910. 9 1 (2) Is the claimant s impairment 2 claimant is found not disabled. 3 severe? If not, the If so, proceed to step three. 4 5 (3) Does the claimant s impairment meet or equal one of a 6 list of specific impairments described in 20 C.F.R. Part 7 404, Subpart P, Appendix 1? If so, the claimant is found 8 disabled. If not, proceed to step four. 9 10 (4) Is the claimant capable of performing her past work? 11 so, the claimant is found not disabled. 12 If If not, proceed to step five. 13 14 (5) Is the claimant able to do any other work? If not, the 15 claimant is found disabled. If so, the claimant is found 16 not disabled. 17 18 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 19 949, 20 416.920(b)-(g)(1). 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b)-(g)(1), 21 22 The claimant has the burden of proof at steps one through four, and 23 the Commissioner has the burden of proof at step five. Bustamante, 262 24 F.3d at 953-54. 25 establishing an inability to perform past work, the Commissioner must 26 show that the claimant can perform some other work that exists in 27 significant numbers in the national economy, taking into account the 28 claimant s RFC, age, education, and work experience. If, at step four, the claimant meets her burden of 10 Tackett, 180 F.3d 1 at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. §§ 404.1520(g)(1), 2 416.920(g)(1). 3 vocational expert ( VE ) or by reference to the Medical-Vocational 4 Guidelines appearing in 20 C.F.R. Part 404, Subpart P, Appendix 2 5 (commonly known as the Grids ). 6 1162 (9th Cir. 2001). 7 related) and nonexertional limitations, the Grids are inapplicable and 8 the ALJ must take the testimony of a VE. 9 869 (9th Cir. 2000). The Commissioner may do so by the testimony of a Osenbrock v. Apfel, 240 F.3d 1157, When a claimant has both exertional (strength- Moore v. Apfel, 216 F.3d 864, 10 11 V. 12 THE ALJ S DECISION 13 14 At the first step of the sequential evaluation process, the ALJ 15 observed that Plaintiff did work after the asserted onset date on a 16 part-time basis. 17 however, leaving no evidence that she had engaged in substantial gainful 18 activity. 19 severe impairments of a lumbar spine disorder and a disorder of the 20 right hip and left elbow. 21 Plaintiff did not have an impairment or combination of impairments that 22 met or medically equaled a listed impairment. (Id.). (AR 16). Plaintiff s earnings were unclear, At step two, the ALJ found that Plaintiff had the (Id.). At the third step, the ALJ found that (AR 17). 23 24 Next, the ALJ determined that Plaintiff had the RFC to perform light 25 work with the limitations that she could occasionally balance, bend, 26 stoop, crouch, kneel, crawl, and climb stairs or ramps, but could not 27 climb ladders, ropes or scaffolds. (AR 17). At step four, the ALJ found 28 that Plaintiff could not perform her past relevant work as a janitor. 11 1 (AR 20). At step five, the ALJ determined that Plaintiff could perform 2 work as a cashier, mail clerk, or sewing machine operator. 3 Accordingly, the ALJ concluded that Plaintiff was not disabled. (AR 21). (AR 20-21). 4 5 VI. 6 STANDARD OF REVIEW 7 8 9 Under 42 U.S.C. § 405(g), a district Commissioner s decision to deny benefits. court may review the The court may set aside the 10 Commissioner s decision when the ALJ s findings are based on legal error 11 or are not supported by substantial evidence in the record as a whole. 12 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 13 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 14 15 Substantial evidence is more than a scintilla, but less than a 16 preponderance. 17 which 18 conclusion. 19 finding, the court must consider the record as a whole, weighing both 20 evidence 21 [Commissioner s] conclusion. 22 v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 23 reasonably support either affirming or reversing that conclusion, the 24 court may not substitute its judgment for that of the Commissioner. 25 Reddick, 157 F.3d at 720-21. a Reddick, 157 F.3d at 720. reasonable Id. that person might accept It is relevant evidence as adequate to support a To determine whether substantial evidence supports a supports and evidence that detracts from the Aukland, 257 F.3d at 1035 (quoting Penny 26 27 28 12 If the evidence can 1 VII. 2 DISCUSSION 3 4 Plaintiff contends a reversal or remand is warranted because the ALJ 5 committed two errors: (1) the ALJ did not properly consider Plaintiff s 6 testimony (Memorandum in Support of Plaintiff s Complaint ( Complaint 7 Memo ) at 4-8); and (2) the ALJ did not properly consider lay witness 8 evidence. 9 disagrees with Plaintiff s contentions. (Id. at 8-10). For the reasons discussed below, the Court 10 11 12 A. The ALJ Provided Clear And Convincing Reasons For Rejecting Plaintiff s Subjective Complaints 13 14 Plaintiff asserts that the ALJ failed to provide legally sufficient 15 reasons for finding that Plaintiff s subjective complaints were not fully 16 credible. (Complaint Memo at 4-8). The Court disagrees. 17 18 To determine whether a claimant s testimony regarding subjective 19 pain or symptoms is credible, an ALJ must engage in a two-step analysis. 20 First, 21 objective medical evidence of an underlying impairment which could 22 reasonably be expected to produce the pain or other symptoms alleged. 23 Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) (internal 24 quotation marks omitted). 25 her impairment could reasonably be expected to cause the severity of the 26 symptom she has alleged; she need only show that it could reasonably have 27 caused some degree of the symptom. 28 1282). the ALJ must determine whether the claimant has presented The claimant, however, need not show that Id. (quoting Smolen, 80 F.3d at Second, if the claimant meets this first test, and there is no 13 1 evidence of malingering, the ALJ can reject the claimant s testimony 2 about the severity of her symptoms only by offering specific, clear and 3 convincing reasons for doing so. Smolen, 80 F.3d at 1281. 4 5 The ALJ cited no affirmative evidence that Plaintiff was 6 malingering. (See AR 17-20). However, the ALJ determined that Plaintiff 7 was not fully credible. 8 and convincing reason4 for rejecting Plaintiff s credibility: 9 failure to comply with governmental laws, rules and regulations by 10 failing to report to the IRS the income from her part-time work for a 11 lawn service. 12 claimant s failure to report income to the IRS supports an ALJ s adverse 13 credibility determination. 14 Cir. 2008). 15 comply with the law (see AR 29) clearly and convincingly detracts from 16 her credibility. 17 1989) (noting that an ALJ may apply ordinary techniques of credibility (Id.). (AR 20). The ALJ provided a specific, clear her At least one other court has found that a See Berger v. Astrue, 516 F.3d 539, 546 (7th This Court agrees that Plaintiff s admitted failure to See Fair v. Bowen, 885 F.2d 597, 604 n.5 (9th Cir. 18 19 20 21 22 23 24 25 26 27 28 4 The ALJ also noted that several credibility factors were particularly applicable: whether the person has a pecuniary interest in the outcome of the hearing or may otherwise be motivated by secondary gain; whether a person s evidence is inconsistent with or contradicted by prior statements or other evidence in the record; and the appearance and demeanor of a person as a witness at the hearing. (AR 19-20.) However, the ALJ offered no further explanation of the reasoning underlying these factors. (See id.). Accordingly, they do not suffice to support his rejection of Plaintiff s credibility. See Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (holding that an ALJ s credibility findings must be sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit claimant s testimony ); see also Bray v. Comm r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (holding that an ALJ s arguably invalid reason for discounting a claimant s credibility was harmless error because the ALJ provided other legitimate reasons to do so). 14 1 evaluation such as considering whether a claimant has been less than 2 candid ). 3 credibility, and Plaintiff s claim does not warrant remand. Accordingly, the ALJ did not err in rejecting Plaintiff s 4 5 6 B. The ALJ s Failure To Expressly Consider Lay Witness Evidence Does Not Require Remand 7 8 9 Plaintiff contends that the ALJ failed to properly consider the third party statement of Charles Vance. (Complaint Memo at 8-10). 10 Although the ALJ erred by failing to expressly consider Vance s report, 11 the Court concludes the error was harmless. 12 13 In determining whether a claimant is disabled, an ALJ must consider 14 lay witness testimony concerning a claimant s ability to work. Stout v. 15 Commissioner, 454 F.3d 1050, 1053 (9th Cir. 2006); Smolen, 80 F.3d at 16 1288; 20 C. F. R. §§ 404.1513(d)(4) & (e), and 416.913(d)(4) & (e). 17 ALJ may discount the testimony of lay witnesses only if he gives reasons 18 that are germane to each witness. 19 (9th Cir. 1993); see also Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 20 2001) ( Lay testimony as to a claimant s symptoms is competent evidence 21 that an ALJ must take into account, unless he or she expressly determines 22 to disregard such testimony and gives reasons germane to each witness for 23 doing so. ). The Dodrill v. Shalala, 12 F.3d 915, 919 24 25 If an ALJ fails to expressly consider lay witness testimony, the 26 Court must determine whether the ALJ s decision remains legally valid 27 despite such error. 28 1155, 1162 (9th Carmickle v. Comm r of Soc. Sec. Admin., 533 F.3d Cir. 2008). If 15 the ALJ s ultimate credibility 1 determination and reasoning are adequately supported by substantial 2 evidence in the record, no remand is required. 3 Comm r of Soc. Sec. Admin., 359 F.3d 1190, 1195-97 (9th Cir. 2004)); see 4 Molina v. Astrue, 674 F.3d 1104, 1115-22 (9th Cir. 2012). Id. (citing Batson v. 5 6 As Plaintiff notes, the ALJ failed to expressly evaluate Vance s about abilities.5 7 report Plaintiff s However, Vance s statements 8 essentially mirrored that of Plaintiff s own testimony and did not 9 strengthen Plaintiff s disability claim. (Compare AR 119-26 with AR 32- 10 34, 37-47, 127-34). Vance s report therefore did not provide any insight 11 into Plaintiff s condition beyond Plaintiff s own testimony, which, as 12 discussed 13 discredit. 14 harmless 15 nondisability determination. 16 that an ALJ s failure to comment upon lay witness testimony is harmless 17 where the same evidence that the ALJ referred to in discrediting the 18 claimant s claims also discredits the lay witness s claims (brackets and 19 internal quotation marks omitted)); Valentine v. Comm r of Soc. Sec. 20 Admin., 574 F.3d 685, 694 (9th Cir. 2009) (holding that an ALJ s clear 21 and convincing reasons for discounting a claimant s testimony are equally 22 germane to reject similar testimony by a lay witness). 23 confidently conclude[s] that no reasonable ALJ, when fully crediting above, the ALJ provided legally sufficient reasons to Accordingly, the ALJ s failure to discuss Vance s report was error because it was inconsequential to the ultimate See Molina, 674 F.3d at 1121-22 (holding Thus, the Court 24 25 5 26 27 28 The ALJ stated that he assessed the credibility of the evidence given by each person, and that the evidence included pre-hearing statements or reports. (AR 19 & n.6). Even if the ALJ reviewed Vance s report, however, he erred by disregarding it without comment. See Lewis, 236 F.3d at 511. 16 1 [Vance s] testimony, could have reached a different determination, and 2 remand is not warranted. See Stout, 454 F.3d at 1056. 3 4 VIII. 5 CONCLUSION 6 7 Consistent with the foregoing, IT IS ORDERED that judgment be entered 8 AFFIRMING the decision of the Commissioner and dismissing this action with 9 prejudice. IT IS FURTHER ORDERED that the Clerk of the Court serve copies 10 of this Order and the Judgment on counsel for both parties. 11 12 DATED: August 6, 2012 13 14 15 ____/S/__________________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 17

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