                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                          DEC 15 2009

                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS

 KAREN M. JOLY,                                       No. 08-35843

              Plaintiff-Appellant,                    D.C. No. 3:07-cv-06190-HA

      v.

 MICHAEL J. ASTRUE, Commissioner                      MEMORANDUM*
 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, October 9, 2009
                                Portland, Oregon

Before:      O'SCANNLAIN and N.R. SMITH, Circuit Judges, and WHYTE,**
             District Judge.




  *
      This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
  **
      The Honorable Ronald M. Whyte, United States District Judge for the
Northern District of California, sitting by designation.
      Karen Joly (“Joly”) appeals the district court’s decision affirming the

Commissioner of Social Security’s denial of disability benefits under Titles II and

XVI of the Social Security Act, 42 U.S.C. § 401 et seq. and § 1381 et seq. We

affirm.

      Joly raises three issues on appeal: (1) whether the ALJ erred in discrediting

Joly’s testimony; (2) whether the ALJ erred in rejecting the opinion of Dr. Rung, a

treating physician; and (3) whether the ALJ erred in rejecting the opinion of nurse

practitioner Greene.1 Joly has failed to establish any errors with respect to issues

(1) and (3). She did correctly note an error in the ALJ’s evaluation of Dr. Rung’s

testimony but the ALJ nevertheless properly discounted the testimony.

      1.     Claimant’s Testimony About the Severity of Her Symptoms Was
             Not Credible

      The ALJ evaluated Joly’s testimony about her symptoms under the proper

legal standard and gave a number of reasons for determining that it was not

credible. First, the ALJ discussed the objective medical findings and concluded


  1
     We do not reach the issue of whether the ALJ’s step-one determination that
Joly’s caregiver work from July 2004 through July 2006 constituted “substantial
gainful activity” was erroneous. Joly did not raise the issue directly in this appeal,
instead raising it only tangentially in the course of arguing that the ALJ erred in her
treatment of Dr. Rung’s testimony. Joly also did not raise the issue in a
substantively meaningful manner before the district court, as conceded by counsel
at oral argument. Under these circumstances, we will not consider the issue here.
See Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001).

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that such findings, along with claimant’s continued employment, were inconsistent

with claimant’s testimony. Second, the ALJ noted that claimant’s prescribed

medications have had “a positive effect on her functioning, including allowing her

to work.” Third, the ALJ noted that Joly’s admitted abilities were inconsistent

with a claim of disability, specifically noting Joly’s caregiver work in addition to

activities she performed shortly before and shortly after her alleged disability onset

date, including mowing heavy grass, owning and caring for a horse (including

cleaning the stall and barn), and fixing fence posts. The ALJ’s stated reasons for

finding that Joly’s testimony about the severity of her symptoms was not credible

are clear and convincing and supported by substantial evidence in the record.

      2.     The ALJ Properly Discounted Dr. Rung’s Opinion Despite an
             Error in Weighing that Opinion

      Dr. Rung is a specialist in physical medicine and treated Joly. The ALJ did

err in finding that Dr. Rung’s testimony was based solely upon self-reports by Joly.

Dr. Rung also based her opinion upon an examination she performed. Moreover,

Dr. Rung did not discredit Joly’s self-reports. The ALJ was not free to simply

disregard Dr. Rung’s opinion. Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198

(9th Cir. 2008). Nevertheless, any error in this regard was harmless for two

reasons.



                                           3
      First, Dr. Rung’s ultimate opinion that Joly was “unlikely to sustain half-

time or greater employment on a long-term basis” is directly contradicted by

evidence in the record that Joly was engaged in “half-time or greater employment”

as a caretaker during the time period in which Dr. Rung issued her opinion.

Further, Dr. Rung had not seen Joly since 2003 when Dr. Rung had determined her

to be medically stationary and able to care for patients who required minimal

lifting and transfer assistance, and the medical evidence (including a 2006 MRI)

indicted that there had been no substantial worsening of Joly’s condition in the

intervening year and a half.

      Second, each of the limitations suggested by Dr. Rung’s opinion, with the

exception of the need to take frequent breaks to lie down during the day, was

effectively encompassed in the residual functional capacity assessment reached by

the ALJ and posed to the vocational expert. With these limitations, the vocational

expert opined that Joly would not be able to perform her past relevant work as it

exists in the national economy but would be able to perform her past work as

actually performed. Although the limitation of frequent breaks to lie down was not

presented to the vocational expert, Joly’s own testimony established that she was

able to lie down periodically in performing her past work. Under SSR 82-61, Joly




                                          4
was not disabled because she was able to perform past relevant work, as it was

actually performed.

      3.     The ALJ Properly Discounted the Nurse Practitioner’s
             Testimony

      Finally, the ALJ did not err in disregarding the opinion of Deidre Greene, a

treating nurse practitioner. A nurse practitioner is an “other source” whose opinion

must be considered by the ALJ, SSR 06-03p, but a statement by a medical source

that a person is “disabled” or “unable to work” is not conclusive and is entitled to

no special significance. 20 C.F.R. § 404.1527(e), § 416.927(e). The ALJ gave

specific and legitimate reasons for giving the opinion no weight. Joly was

continuing to work at the time, there was insufficient objective medical evidence to

support her allegations of pain, and her daily living activities were consistent with

a capacity for light to medium exertion. Moreover, even if the ALJ erred in her

treatment of nurse practitioner Greene’s opinion, the error was harmless for the

same reason that disregarding Dr. Rung’s disability opinion was harmless. The

evidence established that Joly could perform her past relevant work as actually

performed and was thus not disabled.

      AFFIRMED.




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