                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                           DEC 13 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

PATRICK HORSFALL,                               No.    16-35433

                Plaintiff-Appellant,            D.C. No. 3:15-cv-05604-JPD

 v.
                                                MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,

                Defendant-Appellee.

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

                          Submitted November 30, 2017**


Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit Judges.

      Patrick Horsfall appeals the district court’s decision affirming the

Commissioner of Social Security’s denial of his application for disability insurance

benefits under Title II of the Social Security Act. Reviewing de novo, we may set



      *
             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).
aside a denial of benefits only if it is not supported by substantial evidence, or if

the administrative law judge (“ALJ”) applied the wrong legal standard. Molina v.

Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). We affirm.

      The ALJ provided specific and legitimate reasons for discounting the

medical opinions of Dr. Dan Neims and Dr. Mark Heilbrunn. Concerning

evaluations of Horsfall’s mental impairments, the ALJ reasonably assigned greater

weight to Dr. Kristine Harrison’s opinion – that Horsfall was not disabled from

mental health symptoms – than to Dr. Neims’s opinion, which concluded that

Horsfall was disabled by pain and anxiety disorders and depressive symptoms. In

discounting Dr. Neims’s opinion, the ALJ provided a specific and legitimate

reason when the ALJ properly noted that Dr. Neims’s diagnosis of a major

depressive disorder was contradicted by his own observations and other evidence

in the record. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th

Cir. 2008) (holding that an inconsistency between a doctor’s opinion and the

doctor’s clinical findings is a specific and legitimate reason for rejecting the

opinion).

      Concerning evaluations of Horsfall’s physical limitations, the ALJ provided

a number of specific and legitimate reasons for giving only some weight to Dr.

Heilbrunn’s opinion, which concluded that Horsfall had postural and motion

limitations. First, the ALJ properly noted that contemporaneous medical evidence


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did not support the limitations opined by Dr. Heilbrunn, where the ALJ noted that

x-rays taken at the same time as the physical examination showed nothing

abnormal about Horsfall’s lumbar spine. Tommasetti v. Astrue, 533 F.3d 1035,

1041 (9th Cir. 2008) (holding that a specific and legitimate reason for rejecting a

physician’s opinion includes inconsistency with medical records). Second, the

ALJ reasonably inferred that Dr. Heilbrunn relied on Horsfall’s subjective reports

of symptoms and limitations, which were not entirely credible. Tonapetyan v.

Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). Third, the ALJ reasonably concluded

that Dr. Heilbrunn’s opinion conflicted with Horsfall’s activities, which included

working as a groundskeeper, driving a car, and daily activities of bathing and

dressing himself. Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001).

Finally, the ALJ properly concluded that Dr. Packer’s opinion – that Horsfall’s

back problems were not disabling – was generally consistent with the medical

evidence, and deserving of greater weight than Dr. Heilbrunn’s opinion.

Tommasetti, 533 F.3d at 1040-41.

      The ALJ provided specific, clear and convincing reasons for finding that

Horsfall’s statement concerning the intensity, persistence, and limiting effects of

his symptoms were not entirely credible. First, the ALJ reasonably found that

Horsfall’s daily activities were inconsistent with the limitations he described.

Chaudhry v. Astrue, 688 F.3d 661, 672 (9th Cir. 2012) (holding that when


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weighing credibility, an ALJ may consider a claimant’s daily activities). Second,

the ALJ properly found that Horsfalls’s allegations of limitations were not

supported by the medical evidence. Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir.

2005). Finally, we do not consider Horsfall’s contention that the ALJ erred in

using his alleged inconsistent statements in its credibility analysis where Horsfall

did not raise any inconsistencies before the district court. Gregor v. Barnhart, 464

F.3d 968, 973 (9th Cir. 2006).

      The ALJ properly considered the lay witness testimony. First, the ALJ

provided a germane reason for rejecting the testimony and report of Horsfall’s wife

when he reasonably concluded that the testimony and report of Horsfall’s wife was

inconsistent with the objective medical evidence. Bayliss v. Barnhart, 427 F.3d

1211, 1218 (9th Cir. 2005). Second, contrary to Horsfall’s contention, the ALJ did

not discount the function report submitted by Horsfalls’s mother. Third,

concerning the function report of Horsfall’s pastor, the ALJ did not accurately

summarize the report when he omitted the pastor’s observations that for a number

of years Horsfall had a “painful battle with back and spinal degeneration,”

resulting in Horsfall having trouble rising, and having difficulty walking forward.

Nevertheless, the ALJ properly discounted the pastor’s observations as inconsistent

with other evidence. Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 692

(9th Cir. 2009).


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      We reject Horsfall’s contention that the ALJ erred in assessing his residual

functional capacity. Bayliss, 427 F.3d at 1217 (holding that the ALJ need only

include limitations for which there was record support when reaching a residual

functional capacity assessment).

      AFFIRMED.




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