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Costa v. Colvin

United States District Court, E.D. California

March 31, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


EDMUND F. BRENNAN, Magistrate Judge.

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for a period of disability and Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. The parties' cross-motions for summary judgment are pending. For the reasons discussed below, plaintiff's motion is denied and defendant's motion is granted.


Plaintiff filed an application for a period of disability and DIB on May 5, 2008, alleging that she had been disabled since November 21, 2006.[1] Administrative Record ("AR") 130, 249-250. Plaintiff's application was initially denied on July 2, 2008, and upon reconsideration on October 16, 2008. Id. at 135-138, 143-147. On November 18, 2009, March 8, 2010, and July 14, 2010, hearings were held before administrative law judge ("ALJ") Peter F. Belli. Id. at 47-130. Plaintiff was represented by counsel at the hearings, at which she testified. Id. Plaintiff's husband, Thomas Costa, also testified at the July 14, 2010 hearing. Id. at 66-81.

On January 27, 2011, the ALJ issued a decision finding that plaintiff was not disabled under sections 216(i) and 223(d) of the Act.[2] Id. at 21-32. The ALJ made the following specific findings:

1. The claimant meets the insured status requirements of the Social Security Act through June 30, 2011.
2. The claimant has not engaged in substantial gainful activity since May 15, 2008, the amended onset date (20 CFR 404.1571 et seq. ).
* * *
3. The claimant has the following severe impairments: oculodentodigital dysplasia, migraines (20 CFR 404.1520(c)).
* * *
4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.156).
* * *
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except that the claimant can lift and carry 20 pounds occasionally and 10 pounds frequently. The claimant can occasionally push and pull 20 pounds occasionally [sic] and 10 pounds frequently. The claimant can sit for 8 hours in an 8-hour day, with normal breaks. The claimant can stand and walk for 6 hours in an 8-hour day, with normal breaks. The claimant can never climb ladders, ropes, and scaffolds. The claimant can occasionally stoop, crouch, crawl, and kneel.
* * *
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
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7. The claimant was born on October 8, 1970 and was 36 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled, " whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).
* * *
11. The claimant has not been under a disability, as defined in the Social Security Act, from May 15, 2008, through the date of this decision (20 CFR 404.1520(g)).

Id. at 23-32.

Plaintiff requested that the Appeals Council review the ALJ's decision, id. at 16, and on August 21, 2012, the Appeals Council denied review, leaving the ALJ's decision as the final decision of the Commissioner. Id. at 1-6.


The Commissioner's decision that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence in the record and the proper legal standards were applied. Schneider v. Comm'r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999).

The findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). "It means such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)).

"The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).


Plaintiff argues that the ALJ erred by (1) failing to properly weigh the medical opinions of record, (2) failing to provide clear and convincing reasons for rejecting her testimony; and (3) rejecting lay witness testimony without adequate justification.[3]

A. The ALJ Properly Weighed the Medical Opinions

Plaintiff first argues that the ALJ erred by adopting the opinions of non-examining physicians over the opinions from plaintiff's treating physicians. ECF No. 14 at 8-11. The weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining professionals. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996). Ordinarily, more weight is given to the opinion of a treating professional, who has a greater opportunity to know and observe the patient as an individual. Id. ; Smolen v. Chater, 80 F.3d 1273, 1295 (9th Cir. 1996). To evaluate whether an ALJ properly rejected a medical opinion, in addition to considering its source, the court considers whether (1) contradictory opinions are in the record; and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a treating or examining medical professional only for "clear and convincing" reasons. Lester, 81 F.3d at 831. In contrast, a contradicted opinion of a treating or examining professional may be rejected for "specific and legitimate" reasons that are supported by substantial evidence. Id. at 830. While a treating professional's opinion generally is accorded superior weight, if it is contradicted by a supported examining professional's opinion ( e.g., supported by different independent clinical findings), the ALJ may resolve the conflict. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). However, "[w]hen an examining physician relies on the same clinical findings as a treating physician, but differs only in his or her conclusions, the conclusions of the examining physician are not substantial evidence.'" Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007).

In 2007, plaintiff was diagnosed with Oculodentodigital Dysplasia ("ODDD"), AR 531, a genetic condition characterized by congenital anomalies and neurological and cardiac abnormalities, id. at 534. On October 6, 2009, Dr. Yabes, one of plaintiff's treating physicians, completed a form assessing plaintiff's functional limitations. Id. at 772-773. Dr. Yabes diagnosed plaintiff with chronic migraine headaches, ODDD, and chronic fatigue syndrome. Id. at 772. During her most recent examination, plaintiff had severe headaches with photophobia-generalized tenderness and 18/18 tender points. Id. It was Dr. Yabes' opinion that plaintiff could work 1-2 hours a day; lift 5 pounds occasionally; stand for 15-30 minutes at one time; sit for 15-30 minutes at one time; and occasionally bend, stoop, and balance. Dr. Yabes also opined that plaintiff suffers from severe to extreme pain. Id. at 773.

The record also contains the opinion of Dr. Boyd, also one of plaintiff's treating physicians. Id. at 794-795. Dr. Boyd stated that plaintiff's symptoms included progressive spasticity, myofascial pain, bladder spasticity, migraines, and peripheral neuropathy. Id. at 794. He diagnosed plaintiff with ODDD, leading to progressive neurologic disease. Id. He stated that ODDD is a "genetic disorder effecting the brain and peripheral nerves, vision, and manifesting with progressive weakness, spasticity and pain." Id. He also reported that the only treatment available for plaintiff's ODDD was pain and symptomatic management. Id. Dr. Boyd opined that plaintiff was unable to work; was unable to lift any weight; could stand for 15 minutes at a time; sit for 30 minutes at a time, occasionally bend, stoop, and balance; and would need to frequently elevate her legs. Id. at 794-95. He further opined that plaintiff suffers from severe pain due to her ODDD, progressive spasticity and "CNS involvement." Id. at 795.

The record also contains opinions from three non-examining physicians, Dr. Dann, Dr. Eskander, and Dr. Gross. On July 1, 2008, Dr. Dann completed a Physical Residual Functional Capacity Assessment. Id. at 632-636. It was Dr. Dann's opinion that plaintiff had the ability to lift 20 pounds occasionally and 10 pounds frequently, stand and/or walk for about 6 hours in an 8-hour workday, sit about 6 hours in an 8-hour workday, and push and pull without limitation. Id. at 633. He also opined that plaintiff did not have any postural, manipulative, visual, or environmental limitations. Id. at 634-635.

Dr. Eskander also supplied a Physical Residual Functional Capacity Assessment, which was completed on September 18, 2008. AR 708-712. Dr. Eskander opined that plaintiff could lift 20 pounds occasionally and 10 pounds frequently; stand and/or walk for at least 2 hours in an 8-hour workday; sit about 6 hours in an 8-hour workday; push and pull without limitation; and occasionally climb, stoop, kneel, crouch, and crawl. Id. at 709-710. It was also Dr. Eskander's opinion that due to plaintiff's migraines, she should avoid concentrated exposure to extreme heat, noise, vibration, fumes and odors. Id. at 711.

Dr. Gross completed a case analysis on July 1, 2008. Id. at 648-650. Based on his review of the record, Dr. Gross opined that plaintiff maintained the ability to perform the full range of light work as her headaches did not meet the frequency duration and she could physically function within normal limits. Id. at 648-650.

In weighing these medical opinions, the ALJ gave considerable weight to the opinions of Drs. Dann, Eskander, and Gross, while only giving "some weight" to the opinions of Drs. Yabes and Boyd. Id. at 30. Since Drs. Yabes and Boyd's medical opinions were contradicted by Drs. Dann, Eskander, and Gross' opinions, the ALJ was required to give specific and legitimate reasons for discounting their opinions.

The ALJ explained that he gave less weight to Dr. Yabes' opinion because it was inconsistent with other evidence in the record. Id. at 30. The ALJ specifically observed that "Dr. Yabes [sic] assessment of the claimant's functional limitations and pain is over and above the claimant's own description of her impairments and pain symptoms. The claimant testified that she is far more functionally capable than Dr. Yabes reported." Id. This finding is supported by the record. Although plaintiff no doubt experiences debilitating pain during episodes of migraines and pain and weakness associated with ODDD, her testimony indicates that with appropriate pain management she retained the functional capacity to perform a number of daily activities. She testified that she helps get her children ready for school, occasionally prepares meals, goes grocery shopping, occasionally drives a car, and takes her children to the pool to go swimming. AR 54-56, 116-117. Plaintiff's ability to perform these activities is inconsistent with the extreme limitations assessed by Dr. Yabes, which included the ability to stand and sit for only 15-30 minutes at one time. Accordingly, the ALJ provided a specific and legitimate reason for according less weight to Dr. Yabes' assessment of plaintiff's capacity to perform work activities. See Morgan v. Comm'r Soc. Sec. Admin., 169 F.3d 595, 601-602 (9th Cir. 1999) (an ALJ may reject a treating opinion that is inconsistent with other evidence in the record, including plaintiff's reported daily activities).

The ALJ similarly gave less weight to Dr. Boyd's opinion because his assessed limitations were not consistent with plaintiff's reported daily activities. As the ALJ observed, Dr. Boyd essentially opined that plaintiff could not maintain any activity. See id. at 30. Specifically, he opined that plaintiff could perform no work, could not lift any amount of weight, could stand for only 15 minutes at one time, and sit for only 30 minutes at one time. Id. at 794. Yet plaintiff's reported activities are inconsistent with these severe limitations assessed by Dr. Boyd. Accordingly, although reasonable minds might differ, the ALJ provided a legally sufficient basis for why he gave reduced weight to the opinions of Drs. Boyd and Yabes.

In a related argument, plaintiff contends that the ALJ erred in giving greater weight to the opinions of the consultative physicians Drs. Dann, Eskander, and Gross in assessing plaintiff's RFC. ECF No. 14 at 8-10. Plaintiff argues that these opinions should not have been given greater weight because these physicians did not have the benefit of considering medical treatment records that were provided to the Social Security Administration after their opinions were rendered 2008. Id. at 8-9. Plaintiff argues that because the consultative physicians did not have all of plaintiff's medical records, including Dr. Boyd's "detailed... analysis of [plaintiff's] history and diagnosis of ODDD, " and Dr. Yabes and Boyd's "assessments of limitations, " the ALJ should not have given greater weight to their opinions.[4] Id. As discussed below, however, there is nothing in these additional records that undermines the opinions reached by Drs. Dann, Eskander, and Gross or otherwise suggests that they would have reached different opinions had they reviewed those records. At the time they issued their opinions, plaintiff's history and diagnosis of ODDD had already been documented. See AR 531, 534. And as noted, plaintiff's own testimony undermined Dr. Yabes and Boyd's assessments of her functional limitations. See also id. at 739 (U.C. David Health System medical records from February 2009 showing full range of motion in neck, normal coordination, normal gait, and good strength with normal tone). In addition, Dr. Gross' opinion that plaintiff remained functional despite her headaches, although dated, was consistent with later findings made in 2009 through the U.C. Davis Health System that plaintiff did not even experience headaches when she was taking Verapamil. Id. at 788. Thus, despite plaintiff's history of headaches and migraines, later medical records indicate that they could be controlled with medication.

Furthermore, as defendant notes, Drs. Dann and Eskander's opinions are supported by other medical and treatment records. An examination performed by Dr. Yabes on November 2, 2006 found that cervical and lumbar range of motion was within normal limits, plaintiff's upper and lower extremity motor strength was 5/5, and straight leg raising testing was negative in the seated and supine position. Id. at 568. U.C. Davis Health System medical records from February 2009 showed similar findings. Upon examination, plaintiff's strength was 5/5 with normal tone, and plaintiff exhibited a normal gait. Id. at 739.

Thus, the ALJ properly relied on the opinions from Drs. Gross, Dann and Eskander, as they were supported by other evidence in the record. See 20 C.F.R. §§ 404.1527(c)(4) ("the more consistent an opinion is with the record as a whole, the more weight we will give to that opinion"); 20 C.F.R. § 404.1513(c) (findings by state agency physicians constitute proper evidence from non-examining sources); SSR 96-6p ("State agency medical... consultants are highly qualified physicians... who are experts in the evaluation of the medical issues in disability claims."); Thomas v. Barnhart, 278 F.3d 948, 957 (9th Cir. 2002) ("opinions of non-treating or non-examining physicians may also serve as substantial evidence when the opinions are consistent with independent clinical findings or other evidence in the record"). For these reasons, there was no error in the ALJ's analysis of the medical evidence. See, e.g., Wheaton v. Colvin, No. 2:13-1163-CKD, 2014 WL 794356, at *2 (E.D. Cal. Feb. 27, 2014) (ALJ did not err in relying on opinions of consultative examining internal medicine specialist, even though it pre-dated opinion of treating physician by over three years).

B. The ALJ Provided Legally Sufficient Reasons for Discrediting Plaintiff's Testimony

Plaintiff next argues that the ALJ erred in finding that she was not credible. ECF No. 14 at 11-15. In evaluating whether subjective complaints are credible, the ALJ should first consider objective medical evidence and then consider other factors. Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc). If there is objective medical evidence of an impairment, the ALJ then may consider the nature of the symptoms alleged, including aggravating factors, medication, treatment and functional restrictions. See id. at 345-47. The ALJ also may consider: (1) the applicant's reputation for truthfulness, prior inconsistent statements or other inconsistent testimony, (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment, and (3) the applicant's daily activities. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). Work records, physician and third party testimony about nature, severity and effect of symptoms, and inconsistencies between testimony and conduct also may be relevant. Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). A failure to seek treatment for an allegedly debilitating medical problem may be a valid consideration by the ALJ in determining whether the alleged associated pain is not a significant nonexertional impairment. See Flaten v. Secretary of HHS, 44 F.3d 1453, 1464 (9th Cir. 1995). The ALJ may rely, in part, on his or her own observations, see Quang Van Han v. Bowen, 882 F.2d 1453, 1458 (9th Cir. 1989), which cannot substitute for medical diagnosis. Marcia v. Sullivan, 900 F.2d 172, 177 n. 6 (9th Cir. 1990). "Without affirmative evidence showing that the claimant is malingering, the Commissioner's reasons for rejecting the claimant's testimony must be clear and convincing." Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999).

The ALJ observed that plaintiff testified that she was unable to work due to chronic pain symptoms and complications from her migraines and ODDD. AR 28. Plaintiff testified that she has daily headaches, pain in her legs, wrists, and hands, and is constantly exhausted. Id. at 52. She stated that she could only sit up straight for five to ten minutes, and that she cannot lift her head due to migraine pain. Id. at 52, 58. Plaintiff also testified that she does no lifting around the house. Id. at 64. She specifically stated that even opening a jar causes her intense pain. Id.

The ALJ provided several reasons for why he found that plaintiff's allegations regarding her functional limitations were not fully credible. As for the descriptions of debilitating migraine headaches, the ALJ discounted the allegations because plaintiff had only received conservative treatment, which effectively controlled her symptoms. This was not an improper consideration. The Ninth Circuit has held that an ALJ may infer that a claimant's "response to conservative treatment undermines [the claimant's] reports regarding the disabling nature of his pain." Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008). Furthermore, "[i]mpairments that can be controlled effectively with medication are not disabling for the purpose of determining eligibility for" social security benefits. Warre v. Comm'r Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). The ALJ's finding is supported by the record. In 2008, plaintiff completed a headache questionnaire. AR 348-49. Plaintiff indicated that she first started experiencing headaches in the 1990's, and that she experiences daily headaches. Id. at 348. She also stated that she takes medication for her headaches, which works moderately well for the typical everyday headache, but rarely provides relief for her severe migraines. Id. However, medical records from August 3, 2009, showed that plaintiff did not experience migraine headaches while taking Verapamil. Id. at 789. These records specifically stated that plaintiff was migraine free while on Verapamil, and that her migraines returned only after she ran out of this medication. Id. Thus, plaintiff's allegations of debilitating pain during migraines are insufficient to establish disability as the evidence shows that the frequency and severity of her headaches can be controlled with medication.

Plaintiff argues that the ALJ erred in finding that she was not credible based on the medical records from August 3, 2009. ECF No. 14 at 14. She contends that there was no basis for the ALJ to infer that plaintiff "elected to be uncooperative with her treaters and thus was thereafter responsible for her migraines...." Id. The ALJ, however, did not discredit plaintiff's testimony for failure to take her migraine medication as prescribed. Instead, the ALJ reasonably inferred from this evidence, as well as plaintiff's own statements on her headache questionnaire, that plaintiff's headaches could be controlled with conservative treatment. Id. at 28. While reasonable fact finders might reach different results in assessing credibility, the court may not second-guess the ALJ's reasonable inference. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006).

The ALJ also discounted plaintiff's credibility based on a lack of objective medical findings supporting plaintiff's allegations of debilitating pain. Id. at 28. In regards to plaintiff's migraines, a December 2009 CT scan showed no evidence of acute intracranial hemorrhage, mass effect, or extra axial fluid collection. Id. at 799. The ALJ also noted that plaintiff's allegation that she was unable to do any lifting due to back and wrist pain was also not supported by the objective medical evidence. Id. at 28. Medical records show that plaintiff maintained full motor strength in her upper and lower extremities, range of motion for her cervical and lumbar spine was within normal limits, and straight leg raising test was negative in the seated and supine position. Id. at 568. While an ALJ may not rely solely on a lack of objective medical evidence to support an adverse credibility finding, it is a relevant consideration in assessing credibility. See Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); Morgan, at 169 F.3d at 595.

The ALJ also found that plaintiff's allegation of disabling impairments was inconsistent with her reported activities of daily living. As previously discussed, plaintiff testified that she is capable of performing housework, laundry, cooking, and shopping and caring for her children. AR 54-56, 116-117. Plaintiff's allegations of debilitating pain, including the inability to lift anything around the house, are inconsistent with these reported activities. Smolen, 80 F.3d at 1284 (ALJ may rely on inconsistent testimony in assessing a claimant's credibility).

The ALJ also discredited plaintiff's subjective complaints based on her failure to follow a prescribed course of treatment. See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (holding that where a claimant complains of disabling pain but fails to seek treatment, or fails to follow prescribed treatment, an ALJ may use such failure as a basis for finding the complaint unjust or exaggerated). Medical records from February 2010 reflect that plaintiff's exercise tolerance had diminished significantly. Id. at 802. One of plaintiff's treating physicians recommended plaintiff perform muscle strengthening exercises, which could include therapy in a heated pool. Id. at 804. However, as observed by the ALJ, there is no indication that plaintiff ever participated in the recommended therapy.

Lastly, the ALJ found that plaintiff's prior work history suggested that she maintained the ability to work. Id. at 29. Plaintiff stated that she has experienced severe migraines since the 1990's. Id. at 348. The record also reflects that plaintiff worked as a flight attendant until 2006, and then worked as an in-home care provider at a substantial gainful level until 2008. Id. at 89, 99-102, 108-109. The ALJ noted that plaintiff's ability to maintain gainful employment notwithstanding her alleged severe headaches demonstrated that such impairment did not preclude past work activity, and inferred from that a current ability to work notwithstanding migraines when properly treated. Id. at 30. The ALJ was permitted to rely on this evidence in assessing plaintiff's testimony. See Lobato v. Astrue, 2012 WL 5992280, * 9 (C.D. Cal. Nov. 30, 2012 ("The ALJ likewise properly inferred from the fact of plaintiff's gainful employment as a janitor for 15 years that, because her alleged mental impairments had not prevented her from working during that time, this suggests that such impairments would not currently render her unable to work.").

Plaintiff does not dispute that she was able to maintain substantial gainful employment for many years despite her history of severe headaches. Plaintiff contends, however, that her most recent work as an in-home care provides does not support the finding that she currently maintains the ability to work. ECF No. 14 at 16-18. At the November 18, 2009 hearing, plaintiff testified that she works for the County of Placer as an in-home care provider, providing care to her daughter who suffers from nocturnal frontal lobe epilepsy.[5] AR 108-09. She testified that this job simply required plaintiff to be with her daughter at night in case her daughter has a seizure. Id. at 109. In practice, this job only required plaintiff to sleep in the same room as her daughter. Id. Plaintiff notes that this unique job provides little insight into plaintiff's ability to function in the typical work setting. Nonetheless, plaintiff's argument ignores the fact that she was also able to work as a flight attendant until 2006 notwithstanding her assertion that she has experienced headaches since the 1990's. The ALJ did not rely solely on plaintiff's work as an in-home care provider in evaluating plaintiff's testimony. Rather, the ALJ provided several clear and convincing reasons for not fully crediting plaintiff's testimony regarding her ability to work. Accordingly, the ALJ did not err in this regard.

C. The ALJ Provided Legally Sufficient Reasons for Rejecting Mr. Costa's Testimony

Plaintiff next argues that the ALJ erred by failing to provide legally sufficient reasons for rejecting the testimony of her husband, Mr. Costa. ECF No. 14 at 16. Lay testimony as to a claimant's symptoms is competent evidence that an ALJ must take into account, unless he expressly determines to disregard such testimony and gives reasons germane to each witness for doing so. Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001). An ALJ must consider this testimony in determining whether a claimant can work. Stout v. Comm'r of Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006); see also 20 C.F.R. § 416.913(d)(4); Smolen, 80 F.3d at 1288. However, in doing so the ALJ is free to evaluate that testimony and determine the appropriate weight it should be given in the light of the other evidence. To discount the testimony of a lay witness, the ALJ must "give reasons that are germane to each witness." Id. at 1053; see also Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir.2009).

The ALJ indicated that he gave Mr. Costa's testimony no weight because Mr. Costa is not an acceptable medical source, his opinion is not supported by the record as a whole, and many of the limitations he suggested "are reflection of [plaintiff's] subjective complaints, which are not fully credible." AR 30.

The ALJ's first reason, that Mr. Costa is not "acceptable medical source, " is not a legally sufficient basis for rejecting Mr. Costa's testimony. Mr. Costa did not purport to testify as a medical expert. He testified as a lay witness. Thus, while lay witnesses are, by definition, not acceptable medical sources, see 20 C.F.R. § 404.1513(d)(4), the Commissioner's regulations, as well as the law of this circuit, require an ALJ to consider lay testimony in reaching a disability determination. Stout v. Comm'r of Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006); see also 20 C.F.R. § 416.913(d)(4); Smolen, 80 F.3d at 1288.

Nonetheless, this error was harmless. The ALJ provided an additional basis for rejecting Mr. Costa's testimony. The ALJ also found that Mr. Costa's testimony, which corroborated plaintiff's allegations, was not supported by the record as a whole and appeared to be based on plaintiff's subjective complaints. AR 30. Mr. Costa's testimony is largely a reflection of plaintiff's descriptions and appears to be premised on her subjective complaints which the ALJ found not to be fully credible. Thus, the ALJ rejected Mr. Costa's testimony, at least in part, for the same reason that he rejected plaintiff's testimony - that it was not supported by other evidence in the record. This is a germane reason for not fully crediting Mr. Costa's testimony. See Valentine, 574 F.3d at 694 ("In light of our conclusion that the ALJ provided clear and convincing reasons for rejecting [plaintiff's] own subjective complaints, and because [lay witness's] testimony was similar to such complaints, it follows that the ALJ also gave germane reasons for rejecting her testimony.").


The ALJ applied the proper legal standard and his decision was supported by substantial evidence. Therefore, it is hereby ORDERED that:

1. Plaintiff's motion for summary judgment is denied;

2. The Commissioner's cross-motion for summary judgment is granted; and

3. The Clerk is directed to enter judgment in the Commissioner's favor.

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