                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 04 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



CONSTANCE MCCUTCHEON,                            No. 09-35548

             Plaintiff - Appellant,              D.C. No. 1:07-cv-01745-CL

  v.
                                                 MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner,
Social Security Administration,

             Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Oregon
                     Owen M. Panner, District Judge, Presiding

                                                       **
                            Submitted March 5, 2010
                                Portland, Oregon

Before: PAEZ, TALLMAN, and M. SMITH, Circuit Judges.

       Constance McCutcheon Thompson (“McCutcheon”) appeals the district

court’s judgment affirming the Commissioner of Social Security’s final decision to



        *
             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).
deny her application for Supplemental Security Income benefits under Title XVI of

the Social Security Act. Because the parties are familiar with the facts and

procedural history of this case, we will discuss them only as necessary to explain

our decision. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in

part and reverse in part.

      First, McCutcheon claims that the ALJ erred by rejecting lay witness

testimony. It was error to disregard Ms. Harrington’s testimony on the basis that

she had no medical or vocational training. Bruce v. Astrue, 557 F.3d 1113,

1115–16 (9th Cir. 2009). When an ALJ fails to properly consider—or properly

discount—competent lay witness testimony that is 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.” Stout v. Comm’r, Soc. Sec. Admin.,

454 F.3d 1050, 1056 (9th Cir. 2006) (emphasis added). While there may be

substantial evidence in the record to support the ALJ’s ultimate determination, and

the ALJ might properly reject Ms. Harrington’s testimony on other grounds, we

cannot say that no reasonable ALJ would have reached a different disability

determination. The error was not harmless.




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      McCutcheon next argues that the ALJ improperly rejected the opinions of

multiple physicians. This claim lacks merit. First, Dr. Spear’s own evaluations

from 2001 to 2004 conflict with his demarcations on the 2006 form provided by

McCutcheon’s attorney. The ALJ’s decision to reject Dr. Spear’s later opinion was

not error. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (“[W]hen

evaluating conflicting medical opinions, an ALJ need not accept the opinion of a

doctor if that opinion is brief, conclusory, and inadequately supported by clinical

findings.”). Second, the ALJ did not err in partially rejecting Dr. Cole’s analysis,

because his evaluation was done at the request of an attorney and was not based on

objective medical evidence. Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir.

1996). Third, there was no error when the ALJ expressly disregarded the opinions

of McCutcheon’s counselor, Mr. MacKendrick, and gave reasons germane to him

for doing so. Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). Finally,

contrary to McCutcheon’s argument, the ALJ did not actually reject Dr. Bolgrin’s

pain disorder diagnosis, as it was considered in the step-two analysis.

      McCutcheon last argues that the ALJ presented a defective hypothetical to

the vocational expert because the residual functional capacity (“RFC”)

determination did not (1) specify that it was based on a forty-hour work week, and

(2) include all claimed limitations. First, we can draw “specific and legitimate


                                          3
inferences from the ALJ’s opinion,” Magallanes v. Bowen, 881 F.2d 747, 755 (9th

Cir. 1989), and the opinion makes a clear distinction between a part-time job and

work on a sustained basis. We find no error in the ALJ’s failure to expressly state

that his RFC analysis was based on a forty-hour work week. Second, because the

ALJ properly rejected the opinions of certain doctors, see supra, he did not err in

removing those limitations from his RFC determination. However, if

reconsideration of Harrington’s testimony changes the ALJ’s determination of

McCutcheon’s RFC, the hypothetical to the VE will need to be revised.

      We affirm the ALJ’s rejection of testimony from several physicians, and

affirm the use of the hypothetical. We reverse the ALJ’s discounting of

Harrington’s testimony on the sole basis stated, and remand for further proceedings

consistent with this opinion.

      The parties will bear their own costs.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




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