                                                                            FILED
                              NOT FOR PUBLICATION                            DEC 20 2010

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




                              FOR THE NINTH CIRCUIT



TANA L. GERARD,                                  No. 10-35172

                Plaintiff - Appellant,           D.C. No. 4:09-cv-00035-SEH-
                                                 RKS
  v.

MICHAEL J. ASTRUE, Commissioner of               MEMORANDUM *
Social Security Administration,

                Defendant - Appellee.



                     Appeal from the United States District Court
                             for the District of Montana
                      Sam E. Haddon, District Judge, Presiding

                            Submitted November 5, 2010 **

                                    Portland, Oregon

Before:         W. FLETCHER and FISHER, Circuit Judges, and JONES,
                District Judge.***



          *
             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).
          ***
            The Honorable James P. Jones, United States District Judge for the
Western District of Virginia, sitting by designation.
      Tana Gerard appeals the district court’s order affirming the denial of

disability insurance benefits and supplemental security income under Titles II and

XVI of the Social Security Act. We have jurisdiction pursuant to 28 U.S.C. § 1291

and we affirm.

                                          I

      The administrative law judge (“ALJ”) provided specific and legitimate

reasons supported by substantial evidence in the record for disregarding the

contradicted opinions of Gerard’s examining and treating clinicians. See Lester v.

Chater, 81 F.3d 821, 830-31 (9th Cir. 1996).

      The ALJ properly disregarded Nurse Practitioner Sally Lydon’s 2007

opinion that Gerard was “disabled” because Lydon’s 2006 treatment notes

acknowledge that Lydon had “never known [Gerard] to be truly physically

disabled” and that “not really much has changed” since a 1996 functional

evaluation found Gerard capable of full-time work. Contradiction between a

source’s opinion and her treatment notes provides a sufficient basis to discount her

opinion. See, e.g., Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1165

(9th Cir. 2008); Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).

      The ALJ properly disregarded Dr. MaryAnn Evans’s opinion that Gerard

suffered moderate to marked limitations in several areas of cognitive and social


                                          2
functioning. Evans’s opinion was inconsistent with Gerard’s own testimony and

other record medical evidence; for example, Evans based her assessment of

Gerard’s social limitations on the observation that Gerard “only leaves her house

for medical appointments secondary to increased anxiety” and suffered “severe

relational problems” with family members. But Gerard testified that she left her

house to shop for clothes and groceries, to attend GED classes, and to visit with her

mother. Likewise, Evans’s treatment notes indicate that Gerard’s relationship with

her sons was “improving,” and both Evans and social worker Jerry Stenehjem

observed that Gerard was establishing connections with and relying on members of

her psychotherapy group. A treating physician’s opinion may be discounted where

the opinion is “contradicted by other statements and assessments of [a claimant’s]

medical condition.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195

(9th Cir. 2004).

      The ALJ properly disregarded examining physician Dr. Betsy Rushworth’s

opinion that Gerard was incapable of returning to full-time work due to anxiety and

depression. Rushworth based her psychological assessment in part on Gerard’s

self-reported physical limitations, which lay outside Rushworth’s expertise. Cf. 20

C.F.R. § 404.1527(d)(5). Rushworth also relied on Gerard’s complaints that she

was unable to do housework, yardwork, or cooking, and that she did not have any


                                          3
friends. However, one month before Rushworth’s assessment, Gerard told

examining physician Dr. Richard Hurd that she was capable of doing light

housework, laundry, and cooking, and that she had a boyfriend. The ALJ was

entitled to discount Gerard’s description of her own limitations, and accordingly,

Rushworth’s evaluation. See Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir.

1995).

         Finally, the ALJ properly discounted Hurd’s evaluation because Hurd

disclaimed any ability to assess Gerard’s physical condition due to Gerard’s pain

behaviors and self-limiting behaviors.

                                          II

         The ALJ provided specific, cogent reasons supported by clear and

convincing evidence for disbelieving Gerard’s testimony regarding the severity of

her symptoms. See Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001);

Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). The ALJ found that Gerard

had exaggerated her left knee pain in several treatment situations. In September

and October 2005, physical therapist Patrick Byrne concluded that Gerard’s claims

of left knee pain did not match her presentation. In December 2005, Dr. Patrick

Thomas found that Gerard’s claimed pain was disproportionate to her physical

examination. Hurd, as discussed above, was unable to complete his consultative


                                           4
examination because Gerard used pain and self-limiting behaviors such as

moaning, rubbing her back, give-way weakness, and bracing to slight touches.

Such exaggerations support a negative credibility determination. See, e.g., Turner

v. Comm’r of Soc. Sec. Admin., 613 F.3d 1217, 1225 (9th Cir. 2010); Tonapetyan

v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001).

      Moreover, the ALJ permissibly discounted the asserted severity of Gerard’s

anxiety and depression by observing that Gerard cared for herself, cooked and did

housework, visited with friends and family members, and attended psychotherapy

and GED classes. In addition, the ALJ noted that Gerard was responding to

psychotherapy and medication, and that in June 2007, Lydon described Gerard as

“in a good mood and . . . truly just . . . better than I have seen her in a long time.”

An ALJ may base a negative credibility determination on inconsistencies between

a claimant’s testimony, and her conduct, daily activities, and other record evidence.

See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009).

                                           III

      The Commissioner carried his burden at Step Five because the ALJ asked

the vocational expert a hypothetical that captured those functional limitations that

the ALJ found supported by substantial evidence. See Roberts v. Shalala, 66 F.3d

179, 184 (9th Cir. 1995).


                                            5
AFFIRMED.




            6
