                                                                           FILED
                            NOT FOR PUBLICATION                             SEP 28 2012

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




                            FOR THE NINTH CIRCUIT



NEIL WILLIAMS,                                   No. 11-35450

              Plaintiff - Appellant,             D.C. No. 3:09-cv-01278-MO

  v.
                                                 MEMORANDUM *
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,

              Defendant - Appellee.



                   Appeal from the United States District Court
                            for the District of Oregon
                   Michael W. Mosman, District Judge, Presiding

                        Argued and Submitted July 13, 2012
                                Portland, Oregon

Before: B. FLETCHER and PREGERSON, Circuit Judges, and MARSHALL,
Senior District Judge.**

       Plaintiff-Appellant Neil Williams (“Williams”) appeals the district court’s

judgment upholding the Social Security Administration’s denial of Williams’


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable Consuelo B. Marshall, Senior District Judge for the
U.S. District Court for Central California, sitting by designation.
application for social security disability benefits. This court has jurisdiction

pursuant to 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and we affirm.

      We review de novo a district court’s judgment upholding the

Commissioner’s denial of social security benefits. See Vernoff v. Astrue, 568 F.3d

1102, 1105 (9th Cir. 2009); Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir.

2005). We must “independently determine whether the Commissioner’s decision

(1) is free of legal error and (2) is supported by substantial evidence.” Smolen v.

Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). We will affirm the district court’s

order if the Commissioner’s decision was supported by “substantial evidence and a

correct application of the applicable law.” Valentine v. Comm’r Soc. Sec. Admin.,

574 F.3d 685, 690 (9th Cir. 2009) (internal citation omitted).

      First, Williams argues that the Administrative Law Judge (“ALJ”)

improperly rejected his brother’s testimony because the ALJ ignored some of his

brother’s statements and because the ALJ failed to provide any germane reason for

rejecting the testimony. “Lay testimony as to a claimant’s symptoms is competent

evidence which the Secretary must take into account, . . . unless he expressly

determines to disregard such testimony, in which case ‘he must give reasons that

are germane to each witness.’” Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir.




                                           2
1996) (quoting Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir.1993) (emphasis

omitted)).

      Here, the ALJ did not reject or ignore the brother’s testimony, but instead

considered it and gave it less weight than other contradictory evidence:

      [T]he allegations of the claimant’s brother [Robert C. Williams] are
      generally credible. However, while the claimant may have
      experienced difficulties participating in his brother’s and operating his
      own business, there is no evidence he was incapable of simple types
      of tasks. The claimant took community college courses in 1997 and
      1998, taking courses in small business management. His transcript
      reflects he earned A’s and B’s. More recently, he took art classes in
      2004 and earned A’s.

The ALJ’s statement that “there is no evidence he was capable of simple types of

tasks” implies that the ALJ found the brother’s testimony that Williams had

difficulty performing simple tasks not credible. The ALJ acknowledged the

brother’s conclusion regarding simple tasks, but gave more weight to the evidence

showing that Appellant was able to do other more complex tasks as quoted above.

The ALJ therefore properly considered and weighed the evidence.

      Second, Appellant argues that the ALJ “failed to fully and fairly develop the

record” because the evidence surrounding the diagnosis date of Mr. Williams’

dystonia and subsequent prescription of Klonopin is ambiguous. Medical expert

Robert McDevitt testified at the ALJ hearing that there was a need for additional



                                          3
records as to when and for what impairment Appellant was placed on Klonopin,

and the ALJ asked Mr. Williams’ counsel for the records but Mr. Williams’

counsel never provided them. Appellant contends that with this information, Dr.

McDevitt would have been able to opine on the possible side effects of Appellant’s

medications.

      “In Social Security cases the ALJ has a special duty to fully and fairly

develop the record and to assure that the claimant’s interests are considered. . . .

This duty exists even when the claimant is represented by counsel.” Brown v.

Heckler, 713 F.2d 441, 443 (9th Cir. 1983) (citing Thompson v. Schweiker, 665

F.2d 936, 941 (9th Cir. 1982)) (criticizing an ALJ for failing to hold a hearing over

an issue in dispute between the parties). A claimant’s duty is to “furnish medical

and other evidence that [can be used] to reach conclusions about [his] medical

impairment(s) and . . . its effect on [his] ability to work on a sustained basis.” 20

C.F.R. § 404.1512(a).

      Here, the ALJ ordered Appellant’s counsel to provide the exact records that

Dr. McDevitt stated would be helpful. Appellant’s counsel stated on the record

that he would supply the records within thirty days, but failed to do so. Even

without these records, the ALJ was able to determine when Mr. Williams started

taking Klonopin and found that the Klonopin was effective for Appellant. We


                                           4
conclude that because the ALJ held a hearing, ordered that Mr. Williams’ counsel

provide the potentially helpful records, and looked elsewhere in the record to

obtain relevant information, the ALJ did not fail to develop the record.

       Third, Appellant argues that the ALJ erroneously rejected the impartial

medical expert’s testimony and impermissibly substituted her own judgment for

that of the expert by independently reviewing and interpreting the medical reports.

Appellant then states that because the ALJ “assumed the role of medical expert,”

the Appellant’s due process right to cross-examine the “expert” was violated.

       The Code of Federal Regulations requires the use of independent medical

opinion. 20 C.F.R. § 404.1527(a)(2)-(b). The Code states that although the

Commissioner will consider opinions from medical sources on issues such as the

claimant’s functional capacity and whether the claimant has an enumerated

impairment, “the final responsibility for deciding these issues is reserved to the

Commissioner.” Id. at § 404.1527(d)(2). Because the ALJ has the sole

responsibility of making the determination whether a claimant meets the statutory

definition of a disability,“[a] statement by a medical source [he is] ‘disabled’ or

‘unable to work’ does not mean that [the ALJ] will determine that [he is] disabled.”

Id. at (d)(1).




                                           5
      Appellant relies on a First Circuit case stating that “[t]he ALJ may not

substitute his own layman’s opinion for the findings and opinion of a physician . . .

.” Gonzalez Perez v. Sec’y of Health & Human Services, 812 F.2d 747, 749 (1st

Cir. 1987). In Gonzalez Perez, the ALJ did in fact substitute his own judgment for

that of the medical experts by finding that it “was not fully credible” that the

claimant was intolerable to wearing a contact lense in his eye as the medical expert

testified, and that it was “difficult to believe that such an irreconcilable difference

in correction exists between one eye and the other.” Id. at 748. The ALJ drew no

similar medical conclusion in the present case.

      Appellant also relies on the Ninth Circuit case Burkhart v. Bowen, 856 F.2d

1335 (9th Cir. 1988), which held that an ALJ impermissibly assumed the role of

vocational expert. First, Burkhart’s holding relates to vocational experts, not

medical experts. Even if we read Burkhart to include medical experts, it is

inapposite. In Burkhart, the ALJ assumed the role of a vocational expert, opining

on exactly what jobs the claimant could do, and no vocational expert testified in

the case. Id. at 1341. Here, however, there was no lack of expert testimony.

      The ALJ properly reviewed the entire record, including the medical expert’s

opinion, identified contradictory evidence, and determined whether the claimant




                                            6
met the statutory definition of disability as required under 20 C.F.R. § 404.1527(e).




      Appellant also argues that his due process rights were violated because the

ALJ assumed the role of the medical expert and the Appellant was unable to cross-

examine the ALJ in that role. This argument lacks merit, as the ALJ did not

assume the medical expert role, and Appellant did cross-examine the impartial

medical examiner. Moreover, Appellant appealed the ALJ’s findings to the

Commissioner, then filed appeals with the United States District Court and this

Court. Therefore, there is no evidence to support a due process violation.

      Accordingly, we AFFIRM the district court’s judgment in favor of the

Commissioner and the Commissioner’s decision denying Williams’ claim for

social security benefits.




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