NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 28 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGORY BROOKS, No. 18-35169
Plaintiff-Appellant, D.C. No. 6:16-cv-01359-SI
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security Administration,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Submitted August 26, 2019**
Before: FARRIS, LEAVY, and TROTT, Circuit Judges.
Gregory Brooks appeals the district court’s decision affirming the
Commissioner of Social Security’s denial of his applications for disability
insurance benefits and supplemental security income under Titles II and XVI of the
*
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).
Social Security Act. This court reviews the district court’s order de novo, and may
set aside the denial of benefits only if it is not supported by substantial evidence or
is based on legal error. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir.
2015).
The Administrative Law Judge (“ALJ”) provided specific, clear and
convincing reasons for finding that Brooks’ statements concerning the intensity,
persistence and limiting effects of his symptoms were not entirely credible. First,
the ALJ reasonably concluded that the medical record did not support Brooks’
claimed limitations. Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (holding
that the ALJ may consider if there is a lack of medical evidence supporting
claimant’s allegations, but this factor cannot form the only basis for discounting
subjective symptom testimony). Second, the ALJ reasonably found that Brooks’
treatment was essentially conservative in nature, and that this was a basis for
questioning the credibility of his allegations concerning the severity of his
condition. Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007). Third, the ALJ
reasonably found that Brooks’ daily activities were inconsistent with his claims of
complete inability to perform work activity. Chaudhry v. Astrue, 688 F.3d 661,
672 (9th Cir. 2012) (holding that when weighing credibility, an ALJ may consider
a claimant’s daily activities).
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The ALJ provided a germane reason for discounting the lay witness
statement of Brooks’ wife. Brooks’ wife largely repeated his testimony that he
spent much of his day laying down and needed help with most tasks. The ALJ
reasonably concluded that this lay witness report was inconsistent with the medical
evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (holding that
conflict with objective medical evidence is a germane reason to discount lay
testimony). Moreover, the ALJ rejected similar subjective complaints made by
Brooks as not credible. Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685,
694 (9th Cir. 2009) (holding that when a lay witness’s testimony is similar to a
discounted claimant’s testimony, this is a germane reason for rejecting the lay
witness testimony.)
The ALJ properly determined at step five of the sequential evaluation
process that Brooks could perform the medium exertional level job of laundry
worker, and, therefore, he could perform work that exists in significant numbers in
the national economy. The Commissioner concedes that the ALJ erred in finding
that Brooks could perform two of three medium level jobs, but the error is
harmless because the ALJ properly found that Brooks could perform the job of
laundry worker. Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999). Brooks
contends that the ALJ should have applied the applicable grid rule for light work,
rather than applying the rule for medium work, as a framework for adjudication
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because the ALJ identified only one medium unskilled occupation that Brooks
could perform. It is not “clear,” however, that the occupational base for medium
work was significantly eroded so as to warrant application of the lower grid rule
for light work. SSR 83-14 at *3, *6. The ALJ reasonably relied on the vocational
expert’s testimony that Brooks could perform the medium exertion occupation of
laundry worker in finding that Brooks could perform other work available in
significant numbers in the national economy. Burkhart v. Bowen, 856 F.2d 1335,
1340-41 (9th Cir. 1988) (holding that when a claimant has significant
nonexertional limitations the Commissioner cannot rely on the medical-vocational
guidelines, but instead must consult a vocational expert). The vocational expert
testified that there are 43,931 laundry worker jobs in the national economy, and
this constitutes a “significant” number of jobs in the national economy. See e.g.
Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 528-29 (9th Cir. 2014) (holding
that 25,000 jobs in the national economy was significant). Accordingly,
substantial evidence supports the ALJ’s conclusion that Brooks could perform jobs
that exist in significant numbers in the national economy.
AFFIRMED.
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