FILED
NOT FOR PUBLICATION JUN 24 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL ANTHONY BETTS, No. 11-17522
Plaintiff - Appellant, D.C. No. 2:10-cv-02189-NVW
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security Administration,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted June 12, 2013
San Francisco, California
Before: BERZON and BYBEE, Circuit Judges, and MARSHALL, Senior District
Judge.**
Michael Anthony Betts appeals from the district court’s decision affirming
the Social Security Administration’s denial of his application for disability
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Consuelo B. Marshall, Senior District Judge for the
U.S. District Court for the Central District of California, sitting by designation.
insurance benefits and supplemental security income. We have jurisdiction
pursuant to 28 U.S.C. § 1291. We reverse and remand for further proceedings.
The administrative law judge (ALJ) did not err in discounting the opinion of
the nurse practitioner. Because a nurse practitioner is an “other source” rather than
an “acceptable medical source” under 20 C.F.R. § 404.1513, the ALJ only had to
provide “reasons germane” to the nurse practitioner in order to discount her
opinion. See Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). The ALJ did
so, explaining that there were unexplained inconsistencies between the nurse
practitioner’s opinion and her own progress notes.
The ALJ also did not err in making an adverse credibility determination with
regard to Betts’ statements concerning the severity of his symptoms. The ALJ was
required to provide “clear and convincing reasons” supported by substantial
evidence. See Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007);
Burch v. Barnhart, 400 F.3d 676, 680–81 (9th Cir. 2005). The ALJ satisfied this
burden, noting, among other reasons, inconsistencies in Betts’ statements, see
Burch, 400 F.3d at 680, and Betts’ failure to consistently take his prescribed
medication, see Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); see
also Molina, 674 F.3d at 1113–14.
2
The ALJ did err, however, by disregarding aspects of examining physician
Dr. Marcel Van Eerd’s opinion without providing any explanation. Though the
ALJ said he was according “the greatest weight” to Dr. Van Eerd’s opinion, the
ALJ’s finding regarding Betts’ residual functional capacity (RFC) failed to take
into account certain limitations identified by Dr. Van Eerd, particularly limitations
in Betts’ “ability to perform activities within a schedule, maintain regular
attendance, and be punctual within customary tolerances,” and his “ability to
complete a normal workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods.” In order to disregard aspects of
Dr. Van Eerd’s opinion, the ALJ had to provide either “clear and convincing
reasons” or “specific and legitimate reasons,” depending on whether or not Dr.Van
Eerd was contradicted by another doctor in the record. Lester v. Chater, 81 F.3d
3
821, 830–31 (9th Cir. 1996). The ALJ provided no reasons for disregarding
aspects of Dr. Van Eerd’s opinion, so we must reverse.1
REVERSED and REMANDED for further proceedings consistent with this
disposition.
1
Stubbs-Danielson v. Astrue, 539 F.3d 1169 (9th Cir. 2008), relied upon
heavily by the Commissioner, is not to the contrary. In Stubbs-Danielson, the
ALJ’s RFC assessment was consistent with the allegedly disregarded medical
opinion, see id. at 1174, and the ALJ had explained the omission from the RFC
assessment of the aspects of that opinion that had allegedly been ignored, see id. at
1175. Here, by contrast, the ALJ’s RFC assessment was not consistent with the
limitations identified by Dr. Van Eerd discussed above, and the ALJ offered no
explanation.
4