                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 18 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ALEXANDRA JACOB,                                 No.   16-35927

              Plaintiff-Appellant,               D.C. No. 3:15-cv-01414-BR

 v.
                                                 MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,

              Defendant-Appellee.


                    Appeal from the United States District Court
                             for the District of Oregon
                      Anna Brown, District Judge, Presiding

                          Submitted December 14, 2018**


Before: CLIFTON, N.R. SMITH, and CHRISTEN, Circuit Judges.

      Alexandra Jacob appeals the district court’s order affirming the

Commissioner of Social Security’s denial of her application for supplemental

security income under Title XVI of the Social Security Act. We have jurisdiction

      *
             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 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We review de novo, Attmore v.

Colvin, 827 F.3d 872, 875 (9th Cir. 2016), and we affirm.

      The ALJ did not err by relying on Jacob’s reported daily living activities to

discount her testimony concerning the extent of her symptoms and limitations.

The ALJ cited evidence in the record that Jacob attended Adult Basic Education

classes three days a week, earned a modified high school diploma, attended eight

terms of remedial classes at a community college, applied for jobs via the

computer, texted, emailed, used public transportation, rode her bicycle multiple

times per day, volunteered at her church, worked as a cashier at a food cart at her

school, and babysat her sister.

      Jacob takes issue with the ALJ’s statement that Jacob has applied for jobs as

implying that she believes she is capable of working, arguing she has little insight

into the nature of her disability. However, the ALJ subsequently elaborated that

Jacob “applied for jobs via the computer,” apparently relying on the fact that Jacob

was able to use the computer to complete the task of applying for jobs, rather than

on Jacob’s own perception of her employment potential, in discounting her

testimony as incongruent with her daily activities. In addition, although Jacob may

lack insight into her limitations, this lack of insight does not refute her ability to

engage in the activities the ALJ summarized, as demonstrated in the record.

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Finally, the record does not support Jacob’s contention that her desire to work and

ability to do so are out of sync, as a vocational transition specialist who worked

with Jacob commented that she “is a good, reliable worker who may do well in a

job in which the duties are regular and predictable, and doesn’t require as much

independent decision making as preschool teaching.”

      Jacob’s challenges to other activities the ALJ cited, such as her babysitting

duties, computer use, use of public transportation, and volunteer work, fail to

demonstrate why the ALJ’s interpretation was not rational. While Jacob maintains

she often needs to ask questions or receive multiple reminders to complete tasks,

contrary to Jacob’s assertions that she cannot perform any work activity, none of

these arguments illustrate that Jacob is incapable of performing work within the

limitations of the RFC, i.e., simple, routine, repetitive tasks performed in a low-

stress environment with few changes or distractions. While Jacob may have some

difficulties with the activities she engages in, it was reasonable for the ALJ to

conclude that her activities undermine her claims that her impairments prevent her

from engaging in any work activity. Molina v. Astrue, 674 F.3d 1104, 1113 (9th

Cir. 2012).

      The significance of Jacob’s Spanish-language knowledge is not entirely

clear from the ALJ’s decision, as he did not provide any additional explanation as

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to why he cited this information when assessing Jacob’s testimony. However, the

ALJ’s remaining reasons for discounting Jacob’s testimony, including both Jacob’s

other daily activities and the additional reasons he cited for discounting her

testimony, such as medical evidence and Jacob’s course of treatment, are supported

by substantial evidence in the record, rendering any error harmless. See Carmickle

v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008).

      The ALJ erred in discounting the lay witness testimony of Jacob’s mother,

Ms. Mavis Jacob, but this error was harmless. The ALJ reasoned that to the extent

Ms. Jacob suggested that her daughter’s impairments rendered her unable to work,

“Ms. Jacob’s close relationship with her daughter, and a desire to help her, likely

influenced her opinion regarding the claimant’s abilities.” The Ninth Circuit has

held that “[t]he fact that a lay witness is a family member cannot be a ground for

rejecting his or her testimony,” as “[t]o do so ‘contradicts our insistence that,

regardless of whether they are interested parties, friends and family members in a

position to observe a claimant’s symptoms and daily activities are competent to

testify as to his or her condition.’” Diedrich v. Berryhill, 874 F.3d 634, 640 (9th

Cir. 2017) (first quoting Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996);

then quoting Valentine v. Comm’r Soc. Sec. Admin, 574 F.3d 685, 694 (9th Cir.



                                           4
2009)). Therefore, the ALJ’s rationale does not constitute a germane reason for

discounting Ms. Jacob’s testimony.

      In addition, the ALJ stated it “appears that Ms. Jacob[] has a financial

interest in her daughter receiving disability benefits, as they live together and the

claimant has expressed a desire to ‘help my dad pay the bills that are piling up.’”

We have explained that while “evidence that a specific [lay witness] exaggerated a

claimant's symptoms in order to get access to [her] disability benefits . . . might

suffice to reject that lay witness’s testimony,” remarks that a lay witness is an

“‘interested party’ in the abstract” do not sufficiently support rejecting lay witness

testimony. See Valentine, 574 F.3d at 694. The general observation that Jacob

lives with her mother, a “characteristic common[]” to many children, and the fact

that Jacob, as opposed to her mother, commented that she would like to help her

father with the family’s expenses, are not probative of the accuracy of her mother’s

testimony. Id.

      Nevertheless, Ms. Jacob’s testimony overlaps substantially with that of her

daughter, alleging the same symptoms and limitations. Consequently, because we

have held “the ALJ’s reasons for rejecting [the claimant’s] testimony,” such as

inconsistency with medical opinion evidence and Jacob’s daily activities, “apply



                                           5
with equal force to the lay testimony,” any error was harmless. Molina, 674 F.3d

at 1122.

      Jacob’s assertion that the ALJ erred in formulating the RFC by not including

all the limitations psychologist Dr. Cogburn assessed when examining Jacob also

lacks merit. Jacob contends that the RFC fails to account for Dr. Cogburn’s

opinion that “Jacob would likely succeed most easily with close supervision, was

likely to need repeated instructions and frequent reminders, and would benefit

from a job coach to learn skills and routines in a work setting.” However, the ALJ

did account for Jacob’s likely need for repeated instructions and reminders in her

RFC by limiting her to “simple, routine and repetitive work tasks, involving simple

work instructions.”

      In addition, Dr. Cogburn’s conclusions that Jacob “is likely [to] succeed

most easily when performing . . . tasks with close supervision” and “may benefit

from work with a job coach” constitute recommendations, rather than

requirements, to enable Jacob to work. An ALJ does not err by declining to

include physician recommendations, as opposed to imperatives, when formulating

a claimant’s RFC. See Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006

(9th Cir. 2015). Because the RFC represents “the most [a claimant] can still do

despite [his or her] limitations,” Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th

                                          6
Cir. 2017) (quoting 20 C.F.R. § 416.945(a)(1)), rather than a claimant’s ideal work

conditions, the ALJ did not err by not incorporating Dr. Cogburn’s

recommendations when assessing Jacob’s RFC.

      AFFIRMED.




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