Rusten v. Commissioner of Social Security Administration

FILED
NOT FOR PUBLICATION FEB 16 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JAMES DONALD RUSTEN, No. 10-35514
Plaintiff - Appellant, D.C. No. 2:09-cv-00176-JPH
v.
MEMORANDUM *
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION;
UNITED STATES ATTORNEY FOR
THE CIVIL DIVISION OF THE
EASTERN DISTRICT OF
WASHINGTON; ATTORNEY
GENERAL OF THE UNITED STATES,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
James P. Hutton, Magistrate Judge, Presiding
Submitted October 27, 2011 **
San Francisco, California
Before: FARRIS, BEEZER, and LEAVY, Circuit Judges.
*
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).
James Rusten appeals the district court’s summary judgment affirmance of
the Commissioner of the Social Security Administration’s denial of Social Security
disability benefits. The Administrative Law Judge (ALJ) found that Rusten’s
combination of impairments did not significantly limit Rusten’s ability to perform
work, leading to a finding of “not disabled” under 20 C.F.R. § 404.1520(a)(4).
Rusten contends that the ALJ erred by giving little weight to his own testimony,
the lay testimony of his wife and mother and the medical opinions of Dr. Verby,
Dr. Chandler and Nurse Billings. Because the ALJ’s denial was supported by
substantial evidence, we affirm.
We have jurisdiction over this case under 28 U.S.C. § 1291. The facts of the
case are known to the parties. We do not repeat them here.
I
The ALJ gave specific, clear and convincing reasons for giving Rusten’s
testimony slight weight. See Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.
1996). The ALJ noted that there were inconsistencies between Rusten’s testimony
and the medical record, and inconsistencies within Rusten’s testimony itself.
Inconsistent assertions in a claimant’s testimony, and between a claimant’s
testimony and conduct, can be specific reasons not to find the claimant credible.
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Thomas v. Barnhart, 278 F.3d 947, 958–59 (9th Cir. 2002); see also SSR 96-7p,
1996 WL 374186 (July 2, 1996). The ALJ also noted that Rusten was evasive and
dishonest about his past drug use. Inconsistent or dishonest statements about drug
use can be used to infer a lack of veracity in the claimant’s other assertions.
Thomas, 278 F.3d at 959. Finally, the ALJ also noted that Rusten sought treatment
for his mental impairments only infrequently, which the ALJ believed called into
question the severity of Rusten’s impairments. See SSR 96-7p, 1996 WL 374186(July 2, 1996) (A claimant’s statements “may be less credible if the level or
frequency of treatment is inconsistent with the level of complaints, or if the
medical reports or records show that the individual is not following the treatment
as prescribed and there are no good reasons for this failure.”). All three of the
ALJ’s reasons for giving Rusten’s testimony little weight are specific, clear and
convincing reasons supported by the record. The ALJ therefore did not err in
giving Rusten’s testimony little weight.
II
The ALJ gave specific reasons, germane to each witness, for giving little
weight to the lay witness testimony of Rusten’s mother and ex-wife. See Dodrill v.
Shalala, 12 F.3d 915, 919 (9th Cir. 1993). The ALJ noted that their testimony was
at odds with the preponderance of the medical evidence. See Bayliss v. Barnhart,
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427 F.3d 1211, 1218 (9th Cir. 2005) (lay testimony inconsistent with medical
evidence is a germane reason to reject lay testimony). He also noted that Rusten’s
mother and ex-wife could not be considered disinterested witnesses, and that their
statements were likely colored by affection for him. See Greger v. Barnhart, 464
F.3d 968, 972 (9th Cir. 2006) (lay witness’s close relationship with and desire to
help claimant can be a basis for rejecting lay testimony). Both of these reasons are
germane to each witness and backed by substantial evidence in the record. The
ALJ therefore did not err in giving little weight to the testimony of Rusten’s
mother and ex-wife.
III
The ALJ did not err in giving little weight to the testimony of Dr. Verby, Dr.
Chandler and Nurse Billings.
The ALJ is responsible for resolving conflicts in the medical testimony.
Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). An
ALJ cannot discount the opinion of a treating or examining physician without
providing “specific and legitimate reasons that are supported by substantial
evidence in the record.” Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995).
Dr. Verby was Rusten’s treating physician from 2003–2005. The ALJ gave
Dr. Verby’s medical opinion some weight and noted that Dr. Verby indicated that
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Rusten’s condition could be controlled with treatment. Medical impairments that
can be effectively controlled with medication are not disabling. Warre v. Comm’r
of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). The ALJ’s reason for
giving Dr. Verby’s testimony only some weight was therefore supported by
specific and legitimate reasons supported by the record.
The ALJ did err in giving little weight to the medical opinions of Dr.
Chandler, an examining physician. The only reason the ALJ provided for not
crediting Chandler’s medical conclusions was that her assessment was made after
the date last insured. But in considering medical testimony, “medical evaluations
made after the expiration of a claimant’s insured status are relevant to an
evaluation of the pre-expiration condition.” Smith v. Bowen, 849 F.2d 1222, 1225
(9th Cir. 1988). Where an ALJ has erred, we will still uphold the decision if the
error was harmless. Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071
(9th Cir. 2010). Even if the ALJ had given Dr. Chandler’s medical evaluation
more weight, substantial evidence would still support the ALJ’s finding of no
disability, particularly because Dr. Chandler’s own evaluation questions Rusten’s
self-reported ADD diagnosis. The ALJ’s error therefore does not warrant reversal.
The ALJ did not err in giving little weight to Nurse Billings’ opinion. A
nurse practitioner is an “other source” for the purposes of medical testimony, see
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20 C.F.R. § 404.1513(a) & (d), and as such, his opinion cannot be used to establish
a medical impairment. See id. An ALJ can give less weight to an “other source”
medical opinion by providing “reasons germane to each witness for doing so.”
Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010) (internal
quotations omitted). Here, ALJ gave Nurse Billings’ opinion little weight because
it was at odds with the rest of the medical evidence in the record, and because the
opinion letter gave rise to the possibility that Nurse Billings’ opinion was colored
by improper motives. These are specific reasons germane to the witness and
supported by the record. The ALJ therefore did not err in his treatment of Nurse
Billings’ medical opinion.
IV
The judgment of the district court is accordingly
AFFIRMED.
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