                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 22 2009

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




                            FOR THE NINTH CIRCUIT



JENNIFER NERMAN,                                 No. 08-35986

             Plaintiff - Appellant,              D.C. No. 3:07-cv-01720-HA

  v.
                                                 MEMORANDUM *
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,

             Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Oregon
                    Ancer L. Haggerty, District Judge, Presiding

                    Argued and Submitted December 10, 2009
                                Portland, Oregon

Before: FARRIS, D.W. NELSON and BERZON, Circuit Judges.


       The parties do not dispute that Ms. Nerman suffers from Tempromandibular

Joint Syndrome, migraines, tinnitus, herniated cervical disks, and other conditions.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The two narrow questions presented for review are whether the Administrative

Law Judge improperly discounted Ms. Nerman’s testimony, and whether the ALJ

improperly discounted the testimony of her friend, Lawrence Gilbert. The ALJ’s

determinations were supported by substantial evidence and free of legal error. We

affirm.

         After a review of all relevant medical information, the ALJ determined that

based on Nerman’s residual functional capacity, she could perform work that exists

in significant numbers in the national economy. He concluded that Nerman was

not disabled.

         Ms. Nerman first argues that the ALJ’s discrediting of her subjective

symptom testimony was legal error. An ALJ may not reject a claimant’s

“statements about the intensity and persistence of [her] pain or other symptoms or

about the effect [her] symptoms have on [her] ability to work solely because the

available objective medical evidence does not substantiate [her] statements.” 20

C.F.R. Section 404.1529(c)(2). An ALJ may, however, consider medical evidence

as a relevant factor in determining a claimant’s credibility, including medical

evidence contradicting the claimant’s testimony. Rollins v. Massanari, 261 F.3d

853, 857 (9th Cir. 2001); see Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir.

1995).


                                            2
      The ALJ considered three different medical exams (from December 1999,

December 2004, and February 2005) which seemed to contradict Ms. Nerman’s

subjective symptom testimony. In addition, the ALJ properly considered a

favorable response to physical therapy as undermining Nerman’s reports regarding

the disabling nature of pain. Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir.

2008). The ALJ’s reasons for discounting Ms. Nerman’s testimony were clear and

convincing.

       Nerman next argues that the ALJ improperly rejected the lay witness

testimony of Lawrence Gilbert, her friend and co-resident. The ALJ discredited

Mr. Gilbert’s testimony because it, too, conflicted with the medical record. This

was a specific, germane reason for rejecting Mr. Gilbert’s testimony. Lewis v.

Apfel, 236 F.3d 503, 511-12 (9th Cir. 2001).

      The ALJ’s determination of Nerman’s residual functional capacity was

supported by substantial evidence and was not legal error.

      AFFIRMED.




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