                                                                               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                            NOT FOR PUBLICATION                                 SEP 07 2010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


                                         3
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


                                          4
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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