                                                                            FILED
                            NOT FOR PUBLICATION                              APR 08 2011

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




                            FOR THE NINTH CIRCUIT

DAMON A. JOURDAN,                                No. 10-35034

              Plaintiff - Appellant,             D.C. No. 3:08-cv-00971-MA

  v.
                                                 MEMORANDUM *
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,

              Defendant - Appellee.



                  Appeal from the United States District Court
                           for the District of Oregon
                Malcolm F. Marsh, Senior District Judge, Presiding

                       Argued and Submitted March 10, 2011
                                Portland, Oregon

Before: THOMAS and GRABER, Circuit Judges, and MAHAN,** District Judge.

       Damon A. Jourdan timely appeals the district court’s decision affirming the

Commissioner of the Social Security Administration’s denial of his application for

disability insurance benefits under Title II of the Social Security Act, 42 U.S.C.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable James C. Mahan, United States District Judge for the
District of Nevada, sitting by designation.
§§ 401–403. We review de novo a district court’s order upholding such a decision.

Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). “The

Commissioner’s decision must be affirmed by us if supported by substantial

evidence, and if the Commissioner applied the correct legal standards.” Id.

      1. The administrative law judge’s (“ALJ”) adverse credibility determination

with respect to Jourdan was supported by substantial evidence. See Robbins v. Soc.

Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (holding that we review for

substantial evidence). Jourdan’s ten-year work history following the 1986

accident, his history of drug and alcohol abuse, the course of conservative

treatment of his symptoms, and the ALJ’s own observations of Jourdan constitute

substantial evidence to support a conclusion that the ALJ did not arbitrarily

discredit his testimony.

      2. We agree with the lower court that a review of Dr. Wicher’s opinion does

not support the broad conclusions Jourdan wishes to derive. Dr. Wicher stated that

“[m]ental status testing suggested that [Jourdan] might have some problems with

memory and concentration.” However, Dr. Wicher never opined that Jourdan was

precluded from employment altogether, and the ALJ properly accounted for that

limitation in her finding of Jourdan’s residual functional capacity.




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      3. The ALJ erred with respect to the lay witness testimony. Lay testimony

as to a claimant’s symptoms is competent evidence that an ALJ must take into

account, unless he or she expressly determines to disregard such testimony and

gives reasons germane to each witness for doing so. Lewis v. Apfel, 236 F.3d 503,

511 (9th Cir. 2001). Here, the ALJ rejected two pieces of such testimony without

providing reasons, germane to each witness, for doing so.

      Nonetheless, we agree with the district court that the error was harmless.

The ALJ properly considered all evidence of Jourdan’s limitations, including the

symptoms described in the two statements (e.g., Jourdan’s difficulty hearing,

becoming easily frustrated, difficulty with complex instructions), in determining

the existence and scope of Jourdan’s impairment. Accordingly, any error was

harmless. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th

Cir. 2008) (discussing harmless error analysis).

      4. Finally, Jourdan alleges that the ALJ erred at steps four and five of the

five-step sequential analysis by relying on a deficient vocational hypothetical. The

district court rejected this argument, finding that the hypothetical properly included

only limitations based on substantial evidence in the record.

      This conclusion was correct. Both the residual functioning capacity analysis

and the vocational hypothetical should include only limitations “based on medical


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assumptions supported by substantial evidence in the record that reflect[ed] each of

the claimant’s limitations.” Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir.

2001). Thus, the ALJ did not err at steps four and five of the sequential analysis.

      AFFIRMED.




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