Karen Joly v. Michael Astrue , 357 F. App'x 937 ( 2009 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 15 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
KAREN M. JOLY, No. 08-35843
Plaintiff-Appellant, D.C. No. 3:07-cv-06190-HA
v.
MICHAEL J. ASTRUE, Commissioner MEMORANDUM*
Social Security Administration,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, District Judge, presiding
Argued and Submitted, October 9, 2009
Portland, Oregon
Before: O'SCANNLAIN and N.R. SMITH, Circuit Judges, and WHYTE,**
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Ronald M. Whyte, United States District Judge for the
Northern District of California, sitting by designation.
Karen Joly (“Joly”) appeals the district court’s decision affirming the
Commissioner of Social Security’s denial of disability benefits under Titles II and
XVI of the Social Security Act, 42 U.S.C. § 401 et seq. and § 1381 et seq. We
affirm.
Joly raises three issues on appeal: (1) whether the ALJ erred in discrediting
Joly’s testimony; (2) whether the ALJ erred in rejecting the opinion of Dr. Rung, a
treating physician; and (3) whether the ALJ erred in rejecting the opinion of nurse
practitioner Greene.1 Joly has failed to establish any errors with respect to issues
(1) and (3). She did correctly note an error in the ALJ’s evaluation of Dr. Rung’s
testimony but the ALJ nevertheless properly discounted the testimony.
1. Claimant’s Testimony About the Severity of Her Symptoms Was
Not Credible
The ALJ evaluated Joly’s testimony about her symptoms under the proper
legal standard and gave a number of reasons for determining that it was not
credible. First, the ALJ discussed the objective medical findings and concluded
1
We do not reach the issue of whether the ALJ’s step-one determination that
Joly’s caregiver work from July 2004 through July 2006 constituted “substantial
gainful activity” was erroneous. Joly did not raise the issue directly in this appeal,
instead raising it only tangentially in the course of arguing that the ALJ erred in her
treatment of Dr. Rung’s testimony. Joly also did not raise the issue in a
substantively meaningful manner before the district court, as conceded by counsel
at oral argument. Under these circumstances, we will not consider the issue here.
See Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001).
2
that such findings, along with claimant’s continued employment, were inconsistent
with claimant’s testimony. Second, the ALJ noted that claimant’s prescribed
medications have had “a positive effect on her functioning, including allowing her
to work.” Third, the ALJ noted that Joly’s admitted abilities were inconsistent
with a claim of disability, specifically noting Joly’s caregiver work in addition to
activities she performed shortly before and shortly after her alleged disability onset
date, including mowing heavy grass, owning and caring for a horse (including
cleaning the stall and barn), and fixing fence posts. The ALJ’s stated reasons for
finding that Joly’s testimony about the severity of her symptoms was not credible
are clear and convincing and supported by substantial evidence in the record.
2. The ALJ Properly Discounted Dr. Rung’s Opinion Despite an
Error in Weighing that Opinion
Dr. Rung is a specialist in physical medicine and treated Joly. The ALJ did
err in finding that Dr. Rung’s testimony was based solely upon self-reports by Joly.
Dr. Rung also based her opinion upon an examination she performed. Moreover,
Dr. Rung did not discredit Joly’s self-reports. The ALJ was not free to simply
disregard Dr. Rung’s opinion. Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198
(9th Cir. 2008). Nevertheless, any error in this regard was harmless for two
reasons.
3
First, Dr. Rung’s ultimate opinion that Joly was “unlikely to sustain half-
time or greater employment on a long-term basis” is directly contradicted by
evidence in the record that Joly was engaged in “half-time or greater employment”
as a caretaker during the time period in which Dr. Rung issued her opinion.
Further, Dr. Rung had not seen Joly since 2003 when Dr. Rung had determined her
to be medically stationary and able to care for patients who required minimal
lifting and transfer assistance, and the medical evidence (including a 2006 MRI)
indicted that there had been no substantial worsening of Joly’s condition in the
intervening year and a half.
Second, each of the limitations suggested by Dr. Rung’s opinion, with the
exception of the need to take frequent breaks to lie down during the day, was
effectively encompassed in the residual functional capacity assessment reached by
the ALJ and posed to the vocational expert. With these limitations, the vocational
expert opined that Joly would not be able to perform her past relevant work as it
exists in the national economy but would be able to perform her past work as
actually performed. Although the limitation of frequent breaks to lie down was not
presented to the vocational expert, Joly’s own testimony established that she was
able to lie down periodically in performing her past work. Under SSR 82-61, Joly
4
was not disabled because she was able to perform past relevant work, as it was
actually performed.
3. The ALJ Properly Discounted the Nurse Practitioner’s
Testimony
Finally, the ALJ did not err in disregarding the opinion of Deidre Greene, a
treating nurse practitioner. A nurse practitioner is an “other source” whose opinion
must be considered by the ALJ, SSR 06-03p, but a statement by a medical source
that a person is “disabled” or “unable to work” is not conclusive and is entitled to
no special significance. 20 C.F.R. § 404.1527(e), § 416.927(e). The ALJ gave
specific and legitimate reasons for giving the opinion no weight. Joly was
continuing to work at the time, there was insufficient objective medical evidence to
support her allegations of pain, and her daily living activities were consistent with
a capacity for light to medium exertion. Moreover, even if the ALJ erred in her
treatment of nurse practitioner Greene’s opinion, the error was harmless for the
same reason that disregarding Dr. Rung’s disability opinion was harmless. The
evidence established that Joly could perform her past relevant work as actually
performed and was thus not disabled.
AFFIRMED.
5