dissenting:

I respectfully dissent from the majority’s conclusion that the ALJ’s failure to comment properly on the lay witness testimony of Stout’s sister and brother-in-law was not harmless error. I am persuaded, as was the District Court, that even if the lay witness testimony is credited, all the evidence taken as a whole overwhelmingly supports denial of Stout’s application for Disability Insurance Benefits and Supplemental Security Income.

“A decision of the ALJ will not be reversed for errors that are harmless.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.2005). Here, the lay testimony, when viewed in conjunction with the evidence the ALJ properly considered, does not undermine the ALJ’s finding that Stout can engage in his prior work as a vine pruner.

The thrust of the lay testimony was that, in his past work as a roofer, Stout had difficulty working with other people without supervision. Although the letter from Stout’s brother-in-law, Jay Vasquez, used the term “constant supervision” to describe the assistance Stout requires, the remainder of Vasquez’s letter indicates that Vasquez did not provide Stout literal, constant supervision during the ten years Stout worked in his construction company. It also indicates that after Vasquez closed his construction company, Stout worked as a roofer for another company without supervision and support from a family member. Similarly, the testimony of Stout’s sister, Udena Stout, does not stand for the proposition that Stout requires constant supervision. In fact, Udena testified that Stout’s need for supervision would vary in relationship to the complexity of the task. She indicated that Stout could handle simple tasks that require minimal interaction with others, although he would have a tendency to become bored or lose focus.

All the limitations reasonably supported by the lay testimony appeared in the ALJ’s RFC finding. The ALJ noted that Stout has “mild to moderate” difficulties in social functioning and in concentration, persistence, or pace. This information appeared in the ALJ’s RFC, which noted that Stout “has a limited capacity for teamwork and needs to minimize repetitive public contact .... has a limited capacity for multitasking with complex instructions .... [and] ...” needs two to three step tasks which are fairly repetitive.”

As the district court observed, Stout has engaged in substantial work activity in the past and there is no evidence, in the lay testimony or elsewhere, that his mental capabilities have changed. I accordingly agree with the district court’s determination that the ALJ’s failure to comment properly on the lay testimony is harmless error.