Tana Gerard v. Michael Astrue , 406 F. App'x 229 ( 2010 )

FILED
NOT FOR PUBLICATION DEC 20 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TANA L. GERARD, No. 10-35172
Plaintiff - Appellant, D.C. No. 4:09-cv-00035-SEH-
RKS
v.
MICHAEL J. ASTRUE, Commissioner of MEMORANDUM *
Social Security Administration,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted November 5, 2010 **
Portland, Oregon
Before: W. FLETCHER and FISHER, Circuit Judges, and JONES,
District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable James P. Jones, United States District Judge for the
Western District of Virginia, sitting by designation.
Tana Gerard appeals the district court’s order affirming the denial of
disability insurance benefits and supplemental security income under Titles II and
XVI of the Social Security Act. We have jurisdiction pursuant to 28 U.S.C. § 1291and we affirm.
I
The administrative law judge (“ALJ”) provided specific and legitimate
reasons supported by substantial evidence in the record for disregarding the
contradicted opinions of Gerard’s examining and treating clinicians. See Lester v.
Chater, 81 F.3d 821, 830-31 (9th Cir. 1996).
The ALJ properly disregarded Nurse Practitioner Sally Lydon’s 2007
opinion that Gerard was “disabled” because Lydon’s 2006 treatment notes
acknowledge that Lydon had “never known [Gerard] to be truly physically
disabled” and that “not really much has changed” since a 1996 functional
evaluation found Gerard capable of full-time work. Contradiction between a
source’s opinion and her treatment notes provides a sufficient basis to discount her
opinion. See, e.g., Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1165
(9th Cir. 2008); Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).
The ALJ properly disregarded Dr. MaryAnn Evans’s opinion that Gerard
suffered moderate to marked limitations in several areas of cognitive and social
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functioning. Evans’s opinion was inconsistent with Gerard’s own testimony and
other record medical evidence; for example, Evans based her assessment of
Gerard’s social limitations on the observation that Gerard “only leaves her house
for medical appointments secondary to increased anxiety” and suffered “severe
relational problems” with family members. But Gerard testified that she left her
house to shop for clothes and groceries, to attend GED classes, and to visit with her
mother. Likewise, Evans’s treatment notes indicate that Gerard’s relationship with
her sons was “improving,” and both Evans and social worker Jerry Stenehjem
observed that Gerard was establishing connections with and relying on members of
her psychotherapy group. A treating physician’s opinion may be discounted where
the opinion is “contradicted by other statements and assessments of [a claimant’s]
medical condition.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195
(9th Cir. 2004).
The ALJ properly disregarded examining physician Dr. Betsy Rushworth’s
opinion that Gerard was incapable of returning to full-time work due to anxiety and
depression. Rushworth based her psychological assessment in part on Gerard’s
self-reported physical limitations, which lay outside Rushworth’s expertise. Cf. 20
C.F.R. § 404.1527(d)(5). Rushworth also relied on Gerard’s complaints that she
was unable to do housework, yardwork, or cooking, and that she did not have any
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friends. However, one month before Rushworth’s assessment, Gerard told
examining physician Dr. Richard Hurd that she was capable of doing light
housework, laundry, and cooking, and that she had a boyfriend. The ALJ was
entitled to discount Gerard’s description of her own limitations, and accordingly,
Rushworth’s evaluation. See Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir.
1995).
Finally, the ALJ properly discounted Hurd’s evaluation because Hurd
disclaimed any ability to assess Gerard’s physical condition due to Gerard’s pain
behaviors and self-limiting behaviors.
II
The ALJ provided specific, cogent reasons supported by clear and
convincing evidence for disbelieving Gerard’s testimony regarding the severity of
her symptoms. See Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001);
Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). The ALJ found that Gerard
had exaggerated her left knee pain in several treatment situations. In September
and October 2005, physical therapist Patrick Byrne concluded that Gerard’s claims
of left knee pain did not match her presentation. In December 2005, Dr. Patrick
Thomas found that Gerard’s claimed pain was disproportionate to her physical
examination. Hurd, as discussed above, was unable to complete his consultative
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examination because Gerard used pain and self-limiting behaviors such as
moaning, rubbing her back, give-way weakness, and bracing to slight touches.
Such exaggerations support a negative credibility determination. See, e.g., Turner
v. Comm’r of Soc. Sec. Admin., 613 F.3d 1217, 1225 (9th Cir. 2010); Tonapetyan
v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001).
Moreover, the ALJ permissibly discounted the asserted severity of Gerard’s
anxiety and depression by observing that Gerard cared for herself, cooked and did
housework, visited with friends and family members, and attended psychotherapy
and GED classes. In addition, the ALJ noted that Gerard was responding to
psychotherapy and medication, and that in June 2007, Lydon described Gerard as
“in a good mood and . . . truly just . . . better than I have seen her in a long time.”
An ALJ may base a negative credibility determination on inconsistencies between
a claimant’s testimony, and her conduct, daily activities, and other record evidence.
See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009).
III
The Commissioner carried his burden at Step Five because the ALJ asked
the vocational expert a hypothetical that captured those functional limitations that
the ALJ found supported by substantial evidence. See Roberts v. Shalala, 66 F.3d
179, 184 (9th Cir. 1995).
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AFFIRMED.
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