                                                                                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                            NOT FOR PUBLICATION                                 JUN 24 2013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.

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