                                                                           FILED
                               NOT FOR PUBLICATION                          NOV 12 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                           FOR THE NINTH CIRCUIT


CLIFFORD PORTER,                       )      No. 09-35973
                                       )
      Plaintiff – Appellant,           )      D.C. No. 2:08-CV-01555-JPD
                                       )
      v.                               )      MEMORANDUM *
                                       )
MICHAEL J. ASTRUE,                     )
Commissioner of the Social             )
Security Administration,               )
                                       )
      Defendant – Appellee.            )
                                       )

                   Appeal from the United States District Court
                      for the Western District of Washington
                 James P. Donohue, II, Magistrate Judge, Presiding

                     Argued and Submitted November 1, 2010
                              Seattle, Washington

Before:      B. FLETCHER, FERNANDEZ, and BYBEE, Circuit Judges.

      Clifford Porter appeals the district court’s judgment, which affirmed the

Commissioner of Social Security’s denial of Disability Insurance Benefits. We

affirm.




      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. Rule 36-3.
      We are satisfied that a reasonable mind could accept the conclusion that

Porter is not disabled. Bray v. Comm’r, Soc. Sec. Admin., 554 F.3d 1219, 1222

(9th Cir. 2009); Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). In fact, overall,

while not conclusive, we note that Porter was able to hold a job and engage in

many other personal and social activities for many years, and there is no indication

that his condition has significantly changed. See Valentine v. Comm’r, Soc. Sec.

Admin., 574 F.3d 685, 693 (9th Cir. 2009); Drouin v. Sullivan, 966 F.2d 1255,

1258 (9th Cir. 1992). More specifically, we agree with the district court that on

this record:

      (1) The record supports the administrative law judge’s determination 1 that

Porter’s complaints of disability were not entirely credible because they conflicted

with the medical accounts, his own work history, and his regular activities,2

especially because he worked with essentially the same deficits for one employer

for a number of years.3

      (2) The ALJ sufficiently explained why he did not accept the statements of



      1
          Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002).
      2
     See Valentine, 574 F.3d at 693; Bray, 554 F.3d at 1227; Light v. Soc. Sec.
Admin., 119 F.3d 789, 792 (9th Cir. 1997).
      3
          See Drouin, 966 F.2d at 1258.

                                           2
the lay witnesses,4 Porter’s sister and former fiancée, on the basis that it conflicted

with Porter’s own evidence of his activities, including his past work activities, and

with medical opinion.5 The ALJ did fail to mention one lay witness,6 Porter’s

minister, but the evidence from that witness was so weak that it would not have

affected the decision.7

         (3) The ALJ could properly reject the opinions of a physician’s assistant,

who was not an acceptable medical source,8 where the ALJ determined that the

assistant’s opinion conflicted with the opinions of physicians. That reason was

certainly germane to rejecting the physician assistant’s opinion.9

         (4) The ALJ, based on the medical and other evidence, could properly




         4
             See Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir.1996).
         5
       See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1163–64 (9th
Cir. 2008); see also id. at 1161.
         6
       See Turner v. Comm’r, Soc. Sec. Admin., 613 F.3d 1217, 1224 (9th Cir.
2010); Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001).
         7
             See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir.
2006).
         8
             See 20 C.F.R. § 404.1513(d)(1).
         9
       See Turner, 613 F.3d at 1223–24; Bruce v. Astrue, 557 F.3d 1113, 1115
(9th Cir. 2009).

                                               3
conclude that Porter’s back problems were not severe,10 and that his mental

problems were not sufficiently severe to preclude the use of the grids in deciding

whether work was available in the national economy.11

      (5) The ALJ could properly use the grids12 in deciding that because Porter’s

mental impairments did not pose a significant limitation,13 work was available in

the national economy. On balance, the ALJ was not required to call a vocational

expert, although it may have been better to do so.

      In fine, on this record we are not able to state that there was any prejudicial

legal error or that the evidence was insufficient to support the Commissioner’s

determination. See Orn, 495 F.3d at 630; Connett v. Barnhart, 340 F.3d 871, 873

(9th Cir. 2003); Batson v. Comm'r, Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th

Cir. 2004).

      AFFIRMED.

      10
        See 20 C.F.R. § 404.1520(a)(4)(ii)(step 2); Widmark v. Barnhart, 454 F.3d
1063, 1066 (9th Cir. 2006) (discussing weight to be given to examining
physicians’ opinions); Holohan v. Massanari, 246 F.3d 1195, 1201–02 (9th Cir.
2001) (same).
      11
       See 20 C.F.R. § 404.1520(a)(4)(v)(step 5); Hoopai v. Astrue, 499 F.3d
1071, 1076–77 (9th Cir. 2007).
      12
        See Heckler v. Campbell, 461 U.S. 458, 461–62, 103 S. Ct. 1952,
1954–55, 76 L. Ed. 2d 66 (1983) (explaining Grids); Hoopai, 499 F.3d at 1075–76
(9th Cir. 2007) (same).
      13
           See Hoopai, 499 F.3d at 1077.

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