Robin Darlene Napier v. ANDREW M. SAUL, Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBIN DARLENE NAPIER,
Plaintiff-Appellant,
v.
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
No. 18-35842
D.C. No. 4:18-cv-00011-JTJ
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
John T. Johnston, Magistrate Judge, Presiding
Argued and Submitted October 23, 2019
Portland, Oregon
Before: FARRIS, BEA, and CHRISTEN, Circuit Judges.
Robin Napier appeals the denial of her applications for Social Security
Disability Insurance Benefits and Supplemental Security Income. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
FILED
NOV 20 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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1. Napier contends that the ALJ failed to provide “clear and convincing”
reasons for discounting her subjective reports of symptoms. See Leon v. Berryhill,
880 F.3d 1041, 1046 (9th Cir. 2017). We conclude that the ALJ articulated
adequate reasons for discounting Napier’s testimony. First, the ALJ noted
inconsistencies between the objective medical evidence and Napier’s subjective
reports. Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). Second, the ALJ
highlighted Dr. Donaldson’s report that Napier provided inconsistent efforts during
the consultative exam. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002)
(reasoning that the failure “to give maximum or consistent effort” during an exam
was a clear and convincing reason to discount the claimant’s subjective reports).
2. Napier next contends that the ALJ improperly weighed testimony from
various medical providers.
Specifically, Napier argues that the ALJ erred by according “minimal
weight” to Nurse Practitioner Fritz’s testimony. When reviewing claims filed prior
to March 27, 2017, “a nurse practitioner is not an acceptable medical source,” but
is instead defined as an “other source[]” entitled to less deference. Britton v.
Colvin, 787 F.3d 1011, 1013 (9th Cir. 2015) (internal quotation marks omitted);
see also 20 C.F.R. § 404.1527(f). “The ALJ may discount testimony from these
other sources if the ALJ gives reasons germane to each witness for doing so.”
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Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citations and internal
quotation marks omitted).
The ALJ provided three germane reasons for giving less weight to Fritz’s
testimony. First, the ALJ noted inconsistencies between Fritz’s assessment of
Napier’s Residual Functional Capacity (“RFC”) and her exam findings that Napier
was “in no acute distress and ambulated with a normal gait.” See Molina, 674 F.3d
at 1112. Second, the ALJ highlighted that Fritz attributed Napier’s limitations to
two non-severe impairments: hypertension and back pain. Third, the ALJ noted
that Fritz had seen Napier only for annual check-ups, which means that she
examined Napier only infrequently. The underlying reason for giving deference to
the opinions of treating providers is that they can better assess a claimant because
they examine them on a consistent basis. See Andrews v. Shalala, 53 F.3d 1035,
1040–41 (9th Cir. 1995).
Napier also argues that the ALJ “ignored” Dr. Donaldson’s finding that
Napier was capable of seated or light work “at least part if not full time.” Because
Dr. Donaldson was an examining physician, the ALJ was required to give specific
and legitimate reasons for rejecting or discounting Dr. Donaldson’s opinion to the
extent it was contradicted by another doctor’s opinion. Garrison v. Colvin, 759
F.3d 995, 1012 (9th Cir. 2014). Because Dr. Donaldson was not a recognized
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vocational expert, the ALJ appropriately gave minimal weight to his opinion
regarding Napier’s ability to work. See McLeod v. Astrue, 640 F.3d 881, 884 (9th
Cir. 2011) (noting that an ALJ’s rejection of a treating physician’s opinion that the
claimant “could not work at all” was proper because that conclusion was “for the
Social Security Administration to make, not a physician”); see also 20 C.F.R. §
404.1527(d)(1). The ALJ gave appropriate weight to Dr. Donaldson’s medical
opinions regarding Napier’s impairments, and permissibly relied upon Dr.
Donaldson’s testimony in formulating the RFC. The ALJ did not improperly
weigh Dr. Donaldson’s opinion.
3. Napier contends that the ALJ erred at step two by finding that her
neuropathy was not a severe impairment. But Napier prevailed at step two based
on the ALJ’s finding that she had other severe impairments. Any error at this step
was therefore harmless. Burch, 400 F.3d at 682.
4. Napier also contends that the ALJ erred at step four by excluding her
neuropathy from the RFC. In determining a claimant’s RFC, the ALJ must
consider the limitations of relevant impairments, including those that are not
severe. Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017). But the ALJ need
not include limitations that she finds non-credible or unsupported by substantial
evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005).
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The RFC and the hypothetical posed to the vocational expert included all of
Napier’s impairments and limitations that were credible and supported by
substantial evidence. The evidence of numbness and tingling primarily comes
from Napier’s own subjective reports. While the ALJ was required to consider
Napier’s subjective reports of pain, see 20 C.F.R. § 416.929(a), Napier did not
testify that her neuropathy caused any limitations, see Burch, 400 F.3d at 682; she
only alleged that she taps her feet because of her neuropathy. The record does not
contain an objective medical opinion that her neuropathy had limiting effects.
Thus, the ALJ did not err by omitting neuropathy from the vocational hypothetical.
5. Finally, the district court did not deny Napier due process or equal
protection based on its enforcement of Montana Local Rule 78.2(c)(2). The
agency’s brief contained a concise statement of the case, and Napier cites no
relevant authority to support her contention that more was required.
AFFIRMED.
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