                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 16 2012

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




                            FOR THE NINTH CIRCUIT



JAMES DONALD RUSTEN,                             No. 10-35514

              Plaintiff - Appellant,             D.C. No. 2:09-cv-00176-JPH

  v.
                                                 MEMORANDUM *
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION;
UNITED STATES ATTORNEY FOR
THE CIVIL DIVISION OF THE
EASTERN DISTRICT OF
WASHINGTON; ATTORNEY
GENERAL OF THE UNITED STATES,

              Defendants - Appellees.



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

                           Submitted October 27, 2011 **
                             San Francisco, California

Before: FARRIS, BEEZER, and LEAVY, Circuit Judges.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      James Rusten appeals the district court’s summary judgment affirmance of

the Commissioner of the Social Security Administration’s denial of Social Security

disability benefits. The Administrative Law Judge (ALJ) found that Rusten’s

combination of impairments did not significantly limit Rusten’s ability to perform

work, leading to a finding of “not disabled” under 20 C.F.R. § 404.1520(a)(4).

Rusten contends that the ALJ erred by giving little weight to his own testimony,

the lay testimony of his wife and mother and the medical opinions of Dr. Verby,

Dr. Chandler and Nurse Billings. Because the ALJ’s denial was supported by

substantial evidence, we affirm.

      We have jurisdiction over this case under 28 U.S.C. § 1291. The facts of the

case are known to the parties. We do not repeat them here.

                                          I

      The ALJ gave specific, clear and convincing reasons for giving Rusten’s

testimony slight weight. See Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.

1996). The ALJ noted that there were inconsistencies between Rusten’s testimony

and the medical record, and inconsistencies within Rusten’s testimony itself.

Inconsistent assertions in a claimant’s testimony, and between a claimant’s

testimony and conduct, can be specific reasons not to find the claimant credible.



                                          2
Thomas v. Barnhart, 278 F.3d 947, 958–59 (9th Cir. 2002); see also SSR 96-7p,

1996 WL 374186 (July 2, 1996). The ALJ also noted that Rusten was evasive and

dishonest about his past drug use. Inconsistent or dishonest statements about drug

use can be used to infer a lack of veracity in the claimant’s other assertions.

Thomas, 278 F.3d at 959. Finally, the ALJ also noted that Rusten sought treatment

for his mental impairments only infrequently, which the ALJ believed called into

question the severity of Rusten’s impairments. See SSR 96-7p, 1996 WL 374186

(July 2, 1996) (A claimant’s statements “may be less credible if the level or

frequency of treatment is inconsistent with the level of complaints, or if the

medical reports or records show that the individual is not following the treatment

as prescribed and there are no good reasons for this failure.”). All three of the

ALJ’s reasons for giving Rusten’s testimony little weight are specific, clear and

convincing reasons supported by the record. The ALJ therefore did not err in

giving Rusten’s testimony little weight.

                                           II

      The ALJ gave specific reasons, germane to each witness, for giving little

weight to the lay witness testimony of Rusten’s mother and ex-wife. See Dodrill v.

Shalala, 12 F.3d 915, 919 (9th Cir. 1993). The ALJ noted that their testimony was

at odds with the preponderance of the medical evidence. See Bayliss v. Barnhart,


                                           3
427 F.3d 1211, 1218 (9th Cir. 2005) (lay testimony inconsistent with medical

evidence is a germane reason to reject lay testimony). He also noted that Rusten’s

mother and ex-wife could not be considered disinterested witnesses, and that their

statements were likely colored by affection for him. See Greger v. Barnhart, 464

F.3d 968, 972 (9th Cir. 2006) (lay witness’s close relationship with and desire to

help claimant can be a basis for rejecting lay testimony). Both of these reasons are

germane to each witness and backed by substantial evidence in the record. The

ALJ therefore did not err in giving little weight to the testimony of Rusten’s

mother and ex-wife.

                                         III

      The ALJ did not err in giving little weight to the testimony of Dr. Verby, Dr.

Chandler and Nurse Billings.

      The ALJ is responsible for resolving conflicts in the medical testimony.

Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). An

ALJ cannot discount the opinion of a treating or examining physician without

providing “specific and legitimate reasons that are supported by substantial

evidence in the record.” Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995).

      Dr. Verby was Rusten’s treating physician from 2003–2005. The ALJ gave

Dr. Verby’s medical opinion some weight and noted that Dr. Verby indicated that


                                          4
Rusten’s condition could be controlled with treatment. Medical impairments that

can be effectively controlled with medication are not disabling. Warre v. Comm’r

of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). The ALJ’s reason for

giving Dr. Verby’s testimony only some weight was therefore supported by

specific and legitimate reasons supported by the record.

      The ALJ did err in giving little weight to the medical opinions of Dr.

Chandler, an examining physician. The only reason the ALJ provided for not

crediting Chandler’s medical conclusions was that her assessment was made after

the date last insured. But in considering medical testimony, “medical evaluations

made after the expiration of a claimant’s insured status are relevant to an

evaluation of the pre-expiration condition.” Smith v. Bowen, 849 F.2d 1222, 1225

(9th Cir. 1988). Where an ALJ has erred, we will still uphold the decision if the

error was harmless. Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071

(9th Cir. 2010). Even if the ALJ had given Dr. Chandler’s medical evaluation

more weight, substantial evidence would still support the ALJ’s finding of no

disability, particularly because Dr. Chandler’s own evaluation questions Rusten’s

self-reported ADD diagnosis. The ALJ’s error therefore does not warrant reversal.

      The ALJ did not err in giving little weight to Nurse Billings’ opinion. A

nurse practitioner is an “other source” for the purposes of medical testimony, see


                                          5
20 C.F.R. § 404.1513(a) & (d), and as such, his opinion cannot be used to establish

a medical impairment. See id. An ALJ can give less weight to an “other source”

medical opinion by providing “reasons germane to each witness for doing so.”

Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010) (internal

quotations omitted). Here, ALJ gave Nurse Billings’ opinion little weight because

it was at odds with the rest of the medical evidence in the record, and because the

opinion letter gave rise to the possibility that Nurse Billings’ opinion was colored

by improper motives. These are specific reasons germane to the witness and

supported by the record. The ALJ therefore did not err in his treatment of Nurse

Billings’ medical opinion.

                                          IV

      The judgment of the district court is accordingly

AFFIRMED.




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