Kenwyn Bond v. Andrew Saul

K
                                                                              FILED
                            NOT FOR PUBLICATION
                                                                                  MAR 5 2021
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


KENWYN BOND,                                     No.    20-35496

              Plaintiff-Appellant,               D.C. No. 1:19-cv-01128-BR

 v.
                                                 MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,

              Defendant-Appellee.


                    Appeal from the United States District Court
                             for the District of Oregon
                     Anna J. Brown, District Judge, Presiding

                             Submitted March 3, 2021**
                                Pasadena, California

Before: KLEINFELD, TALLMAN, and OWENS, Circuit Judges.

      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

Bond’s statements about the intensity, persistence, and limiting effects of her

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
symptoms. Specifically, while the ALJ found that Bond’s medically determinable

impairments could reasonably be expected to cause the alleged symptoms, Bond’s

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 claimant’s subjective testimony.” Carmickle v. Comm’r, 

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 ALJ’s credibility finding. See Thomas v. Barnhart, 

278 F.3d 947

, 959

(9th Cir. 2002) (“If the ALJ’s 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 son’s witness

statement about the extent of her limitations. The ALJ gave the lay witness

statement “some weight” because it was generally consistent with Bond’s

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


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germane reason. See Stout v. Comm’r, 

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 nurse’s opinion because it was

inconsistent with the evaluations of Bond’s medical doctors, which indicated that

the nurse’s opinion was largely based on unreliable subjective reporting by Bond.

Under the regulations in place at the time Bond filed for benefits, a nurse

practitioner’s 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

doctor’s opinion is a germane reason for discounting a nurse practitioner’s 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


                                          3
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. Comm’r, 

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 Bond’s bouts of panic, her avoidant behavior, and her

trouble dealing with stress. The ALJ only gave “some weight” to Dr. Shields’s

opinion because his findings were inconsistent with Dr. Shield’s own mental status

examination and the medical evidence in the record. A doctor’s 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. Shields’s opinion.

AFFIRMED.




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