                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                        JAN 26 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JEANINE T. LEWIS,                               No.    15-35193

                Plaintiff-Appellant,            D.C. No. 3:14-cv-05626-BHS

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

                Defendant-Appellee.

                   Appeal from the United States District Court
                     for the Western District of Washington
                   Benjamin H. Settle, District Judge, Presiding

                           Submitted January 24, 2018**


Before:      THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit
Judges

      Jeanine Lewis appeals the district court’s decision affirming the

Commissioner of Social Security’s denial of Lewis’s application 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. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo, Ghanim v. Colvin, 763 F.3d 1154, 1159 (9th Cir. 2014), and we affirm.

      The limitation to “low background noise” was a reasonable interpretation of

Dr. Scoones’s opinion that Lewis would have problems hearing “in varied levels of

ambient noise.” See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir.

2008) (requiring this Court to defer to the ALJ when substantial evidence supports

the ALJ’s assessment of specific functional limitations based on the available

medical evidence). The ALJ’s typographical error, omitting the word “no” from

“requiring [no] public contact,” is harmless. See Molina v. Astrue, 674 F.3d 1104,

1115 (9th Cir. 2012) (error is harmless when it is inconsequential to the ultimate

nondisability determination). Substantial evidence supports the ALJ’s

interpretation of the medical records from Dr. Scoones, and the ALJ properly

included all relevant limitations in the residual functional capacity (RFC)

assessment. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197-98 (9th

Cir. 2004).

      The ALJ did not err in relying on the Vocational Expert’s (VE) testimony

because the ALJ properly included in the hypothetical all limitations from the RFC

that were supported by substantial evidence, and the VE did not testify that any

additional limitations or accommodations were required in order for Lewis to

perform any jobs. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005).


                                          2                                   15-35193
      The ALJ properly gave relatively more weight to the medical record than to

the statement of the claimant’s husband. See Bayliss, 427 F.3d at 1218 (holding

that the ALJ properly discredited lay testimony based on inconsistencies with the

medical evidence); Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001) (concluding

that inconsistencies between lay testimony and claimant testimony are a germane

reason to discredit lay testimony). Any error in relying on additional reasons was

harmless because the ALJ provided other germane reasons to discredit the lay

testimony. See Molina, 674 F.3d at 1122.

      The ALJ properly rejected Lewis’s testimony based on clear and convincing

reasons, including lack of objective medical evidence to support her subjective

claims, inconsistencies between Lewis’s testimony and her ability to work in the

past despite her limitations, inconsistencies between Lewis’s allegation of

disability and her statement that she continued looking for work after her alleged

onset of disability, and inconsistencies between Lewis’s testimony and activities.

See Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1225 (9th Cir. 2010)

(concluding that the ALJ reasonably discredited claimant testimony based on the

claimant’s ability to perform past work despite their impairments); Orn v. Astrue,

495 F.3d 625, 639 (9th Cir. 2007) (explaining that the ALJ can discredit claimant

testimony based on daily activities that are inconsistent with the alleged severity of

the claimant’s symptoms); Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005)


                                          3                                    15-35193
(explaining that the ALJ cannot rely only on a lack of objective evidence to

discredit claimant testimony but it is a relevant factor that the ALJ can consider);

Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001) (including the claimant’s

stated reasons for leaving past work in the reasons that the ALJ properly

considered in discrediting claimant testimony).

      AFFIRMED.




                                          4                                    15-35193
                                                                            FILED
Lewis v. Berryhill, No. 15-35193
                                                                              JAN 26 2018
THOMAS, Chief Judge, dissenting:                                         MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


      I respectfully dissent. The ALJ erred in her discussions of the claimant’s

credibility and lay testimony. Because the errors were pervasive and material, I

would reverse and remand for further proceedings.

      To properly discredit Lewis’s testimony, the ALJ was required to provide

clear and convincing reasons supported by substantial evidence. Vasquez v.

Astrue, 572 F.3d 586, 591 (9th Cir. 2009). The ALJ failed to do so. The ALJ did

not explain how Lewis’s ability to work prior to the onset of near-deafness was

inconsistent with her testimony that later communication difficulties triggered her

fibromyalgia and anxiety. Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014).

Similarly, she failed to explain how Lewis’s ability to perform daily activities

alone or with assistance was inconsistent with her testimony. Id. Nor did the ALJ

determine that Lewis’s daily activities translated to the workplace. Orn v. Astrue,

495 F.3d 625, 639 (9th Cir. 2007). The ALJ further erred by discrediting Lewis on

the basis of her unsuccessful search for employment after the alleged onset date, as

the claimant’s inability to find employment does not suggest the absence of

disability. Finally, the remaining reason given to discredit Lewis—a lack of

objective medical evidence—cannot, as a matter of law, justify an adverse
credibility rating. Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). The ALJ

erred in discrediting Lewis’s testimony.

      The ALJ also gave factually and legally erroneous reasons to limit her

consideration of the testimony of the claimant’s husband. The ALJ erred in

discrediting his testimony because of his close familial relationship with Lewis.

Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009). The

ALJ also erred in discrediting his testimony due to inconsistency with Lewis’s own

testimony because her determination was not supported by substantial evidence.

Lewis’s testimony that she did not run errands alone due to communication

difficulties did not conflict with her husband’s testimony that she walked their dog

alone on the beach when there was no possibility of interaction with others.

      I would hold that the errors in the agency decision are not harmless and

reverse the district court. The “circumstances of [this] case show a substantial

likelihood of prejudice, [and] remand is appropriate so that the agency can decide

whether re-consideration is necessary.” McLeod v. Astrue, 640 F.3d 881, 888 (9th

Cir. 2011). Therefore, I respectfully dissent.
