NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 01 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
CALVIN W. GRAHAM, No. 10-35661
Plaintiff - Appellant, D.C. No. 6:08-cv-06367-HO
v.
MEMORANDUM*
COMMISSIONER OF SOCIAL
SECURITY,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael R. Hogan, District Judge, Presiding
Submitted June 10, 2011**
Portland, Oregon
Before: FISHER, GOULD, and PAEZ, Circuit Judges.
Calvin Graham (“Graham”) appeals from the district court’s affirmance of
the final decision by the Commissioner of Social Security denying Graham’s
application for disability insurance benefits and supplemental security income
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under Titles II and XVI of the Social Security Act. We have jurisdiction pursuant
to 28 U.S.C. § 1291, and we review de novo the district court’s decision upholding
the denial of benefits. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222
(9th Cir. 2009). We affirm.
Graham first contends that the administrative law judge (“ALJ”) erred in
dismissing the lay witness testimony of his ex-wife, Sharol Graham (“Sharol”).
The ALJ provided germane reasons for giving Sharol’s testimony limited weight,
noting that Graham engaged in almost three years of substantial gainful
employment beginning less than a year after Sharol submitted her statements to the
disability examiner. Specifically, the record shows that Graham held three jobs
during the period in which he claimed that he was disabled. Notably, Graham did
not leave any of these jobs due to a physical or mental impairment. Cf.
Lingenfelter v. Astrue, 504 F.3d 1028, 1038–39 (9th Cir. 2007) (holding that an
attempt to work may support a disability claim if it is cut short by disability-related
impairments). We therefore conclude that the ALJ did not err in failing to credit
Sharol’s testimony.
Next, Graham contends that the ALJ erred in failing to comment upon the
lay witness testimony of Elizabeth Chaney (“Chaney”). Although we agree that
the ALJ erred, the error was harmless. Harmless error analysis applies when an
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ALJ disregards a lay witness’s testimony without comment. Stout v. Comm’r, 454
F.3d 1050, 1054 (9th Cir. 2006); see id. at 1056 (“[W]here the ALJ’s error lies in a
failure to properly discuss competent lay testimony favorable to the claimant, a
reviewing court cannot consider the error harmless unless it can confidently
conclude that no reasonable ALJ, when fully crediting the testimony, could have
reached a different disability determination.”). Here, the ALJ’s error was harmless
because even if the ALJ fully credited Chaney’s testimony, there was other
significant evidence that supported the ALJ’s nondisability determination.
Specifically, even if the ALJ credited Chaney’s testimony regarding Graham’s
inability to lift more than ten pounds, and therefore found that Graham was limited
to unskilled sedentary work, the vocational expert testified that such jobs were
available locally in large numbers. Further, Chaney’s testimony concerning
Graham’s mental health symptoms was duplicative of evidence in the mental
health records reviewed by the ALJ. The ALJ fully considered Graham’s mental
health issues and made appropriate accommodations in his residual functioning
capacity determination. Because Chaney’s statements were inconsequential to the
ultimate disability finding, the ALJ’s failure to discuss her testimony was harmless.
See id. at 1055.
AFFIRMED.
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