                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            NOV 20 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ROBIN DARLENE NAPIER,                            No.   18-35842

              Plaintiff-Appellant,               D.C. No. 4:18-cv-00011-JTJ

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

              Defendant-Appellee.


                    Appeal from the United States District Court
                            for the District of Montana
                   John T. Johnston, Magistrate Judge, Presiding

                     Argued and Submitted October 23, 2019
                                Portland, Oregon

Before: FARRIS, BEA, and CHRISTEN, Circuit Judges.

      Robin Napier appeals the denial of her applications for Social Security

Disability Insurance Benefits and Supplemental Security Income. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      1. Napier contends that the ALJ failed to provide “clear and convincing”

reasons for discounting her subjective reports of symptoms. See Leon v. Berryhill,

880 F.3d 1041, 1046 (9th Cir. 2017). We conclude that the ALJ articulated

adequate reasons for discounting Napier’s testimony. First, the ALJ noted

inconsistencies between the objective medical evidence and Napier’s subjective

reports. Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). Second, the ALJ

highlighted Dr. Donaldson’s report that Napier provided inconsistent efforts during

the consultative exam. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002)

(reasoning that the failure “to give maximum or consistent effort” during an exam

was a clear and convincing reason to discount the claimant’s subjective reports).

      2. Napier next contends that the ALJ improperly weighed testimony from

various medical providers.

      Specifically, Napier argues that the ALJ erred by according “minimal

weight” to Nurse Practitioner Fritz’s testimony. When reviewing claims filed prior

to March 27, 2017, “a nurse practitioner is not an acceptable medical source,” but

is instead defined as an “other source[]” entitled to less deference. Britton v.

Colvin, 787 F.3d 1011, 1013 (9th Cir. 2015) (internal quotation marks omitted);

see also 20 C.F.R. § 404.1527(f). “The ALJ may discount testimony from these

other sources if the ALJ gives reasons germane to each witness for doing so.”


                                           2
Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citations and internal

quotation marks omitted).

      The ALJ provided three germane reasons for giving less weight to Fritz’s

testimony. First, the ALJ noted inconsistencies between Fritz’s assessment of

Napier’s Residual Functional Capacity (“RFC”) and her exam findings that Napier

was “in no acute distress and ambulated with a normal gait.” See Molina, 674 F.3d

at 1112. Second, the ALJ highlighted that Fritz attributed Napier’s limitations to

two non-severe impairments: hypertension and back pain. Third, the ALJ noted

that Fritz had seen Napier only for annual check-ups, which means that she

examined Napier only infrequently. The underlying reason for giving deference to

the opinions of treating providers is that they can better assess a claimant because

they examine them on a consistent basis. See Andrews v. Shalala, 53 F.3d 1035,

1040–41 (9th Cir. 1995).

      Napier also argues that the ALJ “ignored” Dr. Donaldson’s finding that

Napier was capable of seated or light work “at least part if not full time.” Because

Dr. Donaldson was an examining physician, the ALJ was required to give specific

and legitimate reasons for rejecting or discounting Dr. Donaldson’s opinion to the

extent it was contradicted by another doctor’s opinion. Garrison v. Colvin, 759

F.3d 995, 1012 (9th Cir. 2014). Because Dr. Donaldson was not a recognized


                                          3
vocational expert, the ALJ appropriately gave minimal weight to his opinion

regarding Napier’s ability to work. See McLeod v. Astrue, 640 F.3d 881, 884 (9th

Cir. 2011) (noting that an ALJ’s rejection of a treating physician’s opinion that the

claimant “could not work at all” was proper because that conclusion was “for the

Social Security Administration to make, not a physician”); see also 20 C.F.R. §

404.1527(d)(1). The ALJ gave appropriate weight to Dr. Donaldson’s medical

opinions regarding Napier’s impairments, and permissibly relied upon Dr.

Donaldson’s testimony in formulating the RFC. The ALJ did not improperly

weigh Dr. Donaldson’s opinion.

      3. Napier contends that the ALJ erred at step two by finding that her

neuropathy was not a severe impairment. But Napier prevailed at step two based

on the ALJ’s finding that she had other severe impairments. Any error at this step

was therefore harmless. Burch, 400 F.3d at 682.

      4. Napier also contends that the ALJ erred at step four by excluding her

neuropathy from the RFC. In determining a claimant’s RFC, the ALJ must

consider the limitations of relevant impairments, including those that are not

severe. Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017). But the ALJ need

not include limitations that she finds non-credible or unsupported by substantial

evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005).


                                          4
      The RFC and the hypothetical posed to the vocational expert included all of

Napier’s impairments and limitations that were credible and supported by

substantial evidence. The evidence of numbness and tingling primarily comes

from Napier’s own subjective reports. While the ALJ was required to consider

Napier’s subjective reports of pain, see 20 C.F.R. § 416.929(a), Napier did not

testify that her neuropathy caused any limitations, see Burch, 400 F.3d at 682; she

only alleged that she taps her feet because of her neuropathy. The record does not

contain an objective medical opinion that her neuropathy had limiting effects.

Thus, the ALJ did not err by omitting neuropathy from the vocational hypothetical.

      5. Finally, the district court did not deny Napier due process or equal

protection based on its enforcement of Montana Local Rule 78.2(c)(2). The

agency’s brief contained a concise statement of the case, and Napier cites no

relevant authority to support her contention that more was required.


      AFFIRMED.




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