William Cole v. Michael Astrue

FILED
NOT FOR PUBLICATION SEP 07 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM L. COLE, No. 09-36082
Plaintiff - Appellant, D.C. No. 3:08-cv-05689-BHS
v.
MEMORANDUM*
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Submitted September 2, 2010**
Seattle, Washington
Before: HAWKINS, McKEOWN and BEA, Circuit Judges.
William Cole appeals the district court’s order affirming the Commissioner
of Social Security’s denial of his 2006 application for social security disability
benefits. Cole claims that he has been disabled as of January 1, 2005, due to
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
diabetes, high blood pressure, and a back condition. The Commissioner rejected
Cole’s application, concluding Cole retained a residual functional capacity (RFC)
that allowed him to perform some jobs available in significant numbers in the
national economy. We have jurisdiction under 28 U.S.C. § 1291, and review the
district court’s order de novo “to ensure that the [Commissioner’s] decision was
supported by substantial evidence and a correct application of the law.” Valentine
v. Comm’r, 574 F.3d 685, 690 (9th Cir. 2009) (internal quotation marks omitted).
We affirm. As the parties are familiar with the facts, we will not repeat them here.
Cole offers several objections related to the treatment of the medical and
medical-related evidence. Although Cole urges the panel to adopt a different
standard, the established standard for evaluating an ALJ’s treatment of an “other
source” opinion, such as those from the physician’s assistant and the physical
therapist, is whether the ALJ provided “germane” reasons for discounting that
opinion. Valentine, 574 F.3d at 694; Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir.
1993); see also Jamerson v. Chater, 112 F.3d 1064, 1067 (9th Cir. 1997).
The ALJ offered germane reasons—including the limited interaction the
sources had with Cole and the apparent temporal nature of the physical therapist’s
evaluation—to disagree regarding the severity of Cole’s limitations. Although the
ALJ did not address the fact that a doctor co-signed two of the three evaluations
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from the physician’s assistant, Cole does not meet his burden of demonstrating that
the error was not harmless. See Shinseki v. Sanders, 129 S.Ct. 1696, 1706 (2009).
Any error based on that oversight was indeed harmless, as the ALJ identified
substantial evidence to support his findings regarding Cole’s RFC. See Carmickle
v. Comm’r, 533 F.3d 1155, 1162 (9th Cir. 2008).
Cole objected that the ALJ did not consider certain pieces of medical
evidence. The ALJ is charged with the duty to weigh all of the evidence in the
record to reach an RFC assessment, Thomas v. Barnhart, 278 F.3d 947, 954
(9th Cir. 2002), but is not required to discuss each piece of evidence. The ALJ
noted that Cole’s medical records confirmed Cole’s painful back condition, but did
not provide evidence demonstrating the severely incapacitating level Cole
described. The ALJ identified substantial evidence to support his conclusion that
Cole retained the RFC to perform a limited range of “light” work. Further, the
additional evidence (x-ray and treatment note) that Cole argues the ALJ should
have discussed does not appear to add materially to the evidence the ALJ
mentioned. The ALJ did not err by improperly considering the medical and
medical-related evidence.
Cole also protests that the ALJ improperly handled Cole’s subjective pain
testimony and the lay evidence provided by two of his friends. In discounting
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Cole’s symptom testimony, the ALJ provided several specific, clear and
convincing reasons, as required. See Smolen v. Chater, 80 F.3d 1273, 1281
(9th Cir. 1996). The ALJ highlighted that (1) Cole undertook activities that did not
comport with his supposed pain level; (2) Cole relied on only medical marijuana to
treat his symptoms; (3) the medical evidence did not support Cole’s reported level
of symptoms; and (4) Cole revealed to the psychological evaluator that he might
have other motivations for seeking disability payments.
The ALJ was required to provide “germane reasons” for not crediting the
friends’ lay evidence. See Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). The
ALJ specifically addressed the evidence from each friend, giving examples to
support his findings that the evidence lacked the specificity or accuracy to be
afforded great weight. The ALJ is charged with assessing credibility, Andrews v.
Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995), and did not err by limiting the weight
given to the lay testimony.
Finally, Cole argues that the ALJ erred in finding that jobs Cole could
perform existed in the national economy in significant numbers. The ALJ was not
required to consider the vocational expert’s testimony based on a hypothetical
Cole created. See Osenbrock v. Apfel, 240 F.3d 1157, 1164-65 (9th Cir. 2001).
Cole highlights, correctly, that there was a discrepancy between the vocational
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expert’s testimony and the Dictionary of Occupational Titles, and that the ALJ did
not take the required steps of identifying and resolving this inconsistency. See
Masachi v. Astrue, 486 F.3d 1149, 1153-54 (9th Cir. 2007). The Commissioner
concedes the error, but Cole does not meet his burden of demonstrating the error
was not harmless. See Shinseki, 129 S.Ct. at 1706.
There was sufficient remaining evidence in the record to support the
conclusion that significant numbers of jobs existed that Cole could perform. See
Masachi, 486 F.3d at 1154 n.19. Unchallenged evidence in the record showed
Cole could perform work as a table worker. Additionally, the expert testified that
significant numbers of “sit/stand option” cashier and small products assembler jobs
existed that Cole could perform. The expert’s testimony showed there were over
25,000 jobs in Washington state in these three categories combined. Any error was
therefore rendered harmless. See e.g., Barker v. Sec’y of Health & Human Servs.,
882 F.2d 1474, 1478-79 (9th Cir. 1989) (affirming finding of availability of
significant number of jobs petitioner could perform where 1266 jobs were
identified in the local area).
AFFIRMED.
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