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BOND v. SAUL (2021)

United States Court of Appeals, Ninth Circuit.2021-03-05No. No. 20-35496

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Opinion

MEMORANDUM **

Bond argues that the Administrative Law Judge (ALJ) erred by rejecting her testimony as to her pain and the extent of her limitations. The ALJ discounted Bonds statements about the intensity, persistence, and limiting effects of her symptoms. Specifically, while the ALJ found that Bonds medically determinable impairments could reasonably be expected to cause the alleged symptoms, Bonds statements concerning the intensity, persistence and limiting effects of those symptoms were inconsistent with the medical evidence and other evidence in the record. “Contradiction with the medical record is a sufficient basis for rejecting the claimants subjective testimony.” Carmickle v. Commr, 533 F.3d 1155, 1161 (9th Cir. 2008) (citing Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995)). Here, for example, Bond claimed that she needed to elevate her legs for five to six hours a day to relieve swelling. The medical record, however, consistently showed Bond had no cyanosis, clubbing, or edema. Therefore, substantial evidence supports the ALJs credibility finding. See Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (“If the ALJs credibility finding is supported by substantial evidence in the record, we may not engage in second-guessing.”).

Bond also argues that the ALJ improperly addressed her sons witness statement about the extent of her limitations. The ALJ gave the lay witness statement “some weight” because it was generally consistent with Bonds testimony, which he had already discounted due to contradiction with the medical record. An ALJ can discount a lay witness statement, so long as he gives a germane reason. See Stout v. Commr, 454 F.3d 1050, 1053 (9th Cir. 2006). The contradiction with the medical evidence was a germane reason to discount the lay witness statement.

Bond claims that the ALJ erred by rejecting the opinions of her nurse practitioner. The ALJ gave “some weight” to the nurses opinion because it was inconsistent with the evaluations of Bonds medical doctors, which indicated that the nurses opinion was largely based on unreliable subjective reporting by Bond. Under the regulations in place at the time Bond filed for benefits, a nurse practitioners opinion was categorized under “other sources.” 20 C.F.R. §§ 416.913(d), 404.1513(d), superseded by revised regulation in 2017. An ALJ can discount “other sources” if he gives a germane reason for doing so. Britton v. Colvin, 787 F.3d 1011, 1013 (9th Cir. 2015) (per curiam). Contradiction with a doctors opinion is a germane reason for discounting a nurse practitioners opinion. Id. Therefore, the ALJ did not err.

Bond further claims that the ALJ failed to properly address the opining of Dr. Grant and Dr. Ziegler that Bond should avoid repetitive use of her left arm and hand, and that she would benefit from activity modification. To the contrary, the ALJ did consider the doctors’ evaluations. He was not required to include their opining in his residual functional capacity determination, however, because nowhere did either doctor indicate that Bond was “incapable of working except under [their] recommended conditions.” Valentine v. Commr, 574 F.3d 685, 691 (9th Cir. 2009). Therefore, the ALJ did not err in this regard either.

Finally, Bond claims that the ALJ erred in failing to include any limitations in social functioning or in concentration, persistence, and pace in his residual functional capacity determination. Specifically, Bond points to the opinion of Dr. Shields, who opined about Bonds bouts of panic, her avoidant behavior, and her trouble dealing with stress. The ALJ only gave “some weight” to Dr. Shieldss opinion because his findings were inconsistent with Dr. Shields own mental status examination and the medical evidence in the record. A doctors opinion may be discounted if it conflicts with his clinical notes and observations. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). Therefore, substantial evidence supports discounting Dr. Shieldss opinion.

AFFIRMED.