Suzette Bourcier v. Andrew Saul ( 2021 )

FILED
NOT FOR PUBLICATION
APR 20 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUZETTE NICOLE BOURCIER, No. 20-35316
Plaintiff-Appellant, D.C. No. 9:19-cv-00051-KLD
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee,
and
NANCY A. BERRYHILL,
Defendant.
Appeal from the United States District Court
for the District of Montana
Kathleen Louise DeSoto, Magistrate Judge, Presiding
Submitted April 16, 2021**
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: GRABER and CALLAHAN, Circuit Judges, and SELNA,*** District
Judge.
Suzette Bourcier appeals from the district court’s judgment affirming the
decision of the Commissioner of Social Security denying her claim for disability
benefits. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part,
reverse in part, and remand for reconsideration.
1. The ALJ provided "specific and legitimate reasons" to assign minimal
weight to treating physician Dr. Sarah Huddleston’s opinion that Claimant is
unable to work. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Dr.
Huddleston’s opinion conflicts with her own treatment notes and treatment notes
from other providers at the same medical facility. See Tommasetti v. Astrue, 533
F.3d 1035, 1041 (9th Cir. 2008) (explaining that inconsistency with medical
records qualifies as a legitimate reason to discount a treating physician’s opinion).
Those notes reveal that Claimant was in "no acute distress," had a "normal" gait
and "full range of motion," had intact cognitive functioning, and demonstrated
cooperative behavior, good judgment and insight.
Additionally, the ALJ permissibly found that Dr. Huddleston’s opinion was
conclusory and inadequately supported. See Batson v. Comm’r of Soc. Sec.
***
The Honorable James V. Selna, United States District Judge for the
Central District of California, sitting by designation.
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Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) ("[A]n ALJ may discredit treating
physicians’ opinions that are conclusory, brief, and unsupported by the record as a
whole."). Dr. Huddleston’s explanation that Claimant’s "physical health and
mental health issues" prevent her from "hold[ing] a job at this time" was cursory,
unsupported, and not accompanied by a functional capacity evaluation.
Further, Dr. Huddleston’s opinion was controverted by the opinions of non-
examining and non-treating physicians. Those opinions are supported by and
consistent with other evidence in the record. See Thomas v. Barnhart, 278 F.3d
947, 957 (9th Cir. 2002) ("The opinions of non-treating physicians . . . may also
serve as substantial evidence when the opinions are consistent with independent
clinical findings or other evidence in the record."). Accordingly, the ALJ did not
err in giving those opinions significant weight.
2. The ALJ gave germane reasons to discount the opinion of Mavis
Vaillancourt, a licensed clinical social worker. Molina v. Astrue, 674 F.3d 1104,
1111–12 (9th Cir. 2012) superseded by regulation on other grounds.
Vaillancourt’s opinion is not supported by the treatment record. See Lewis v.
Apfel, 236 F.3d 503, 511 (9th Cir. 2001) (holding that incongruity with medical
record is a germane reason for discounting other source testimony). For example,
although Vaillancourt stated that Claimant suffered from frequent, unpredictable,
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and incapacitating panic attacks in social settings, there is no evidence in the record
documenting those attacks.
Additionally, the ALJ permissibly found that Vaillancourt’s opinion is
inconsistent with the activities that Claimant reported she engaged in. Although
Vaillancourt opined that Claimant is unable to interact with others because of the
incapacitating panic attacks she experiences in social settings, Claimant testified
that she eats out once a week and grocery shops monthly. See Britton v. Colvin,
787 F.3d 1011, 1013 (9th Cir. 2015) (per curiam) (explaining that inconsistencies
between an "other source" opinion and a claimant’s daily activities is a germane
reason for the ALJ to discount that opinion).
3. The ALJ gave "specific, clear, and convincing reasons" to discount
Claimant’s testimony regarding the severity and extent of her limitations. Garrison
v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014).
Claimant testified that she is unable to lift more than ten pounds or walk
more than 50 yards without having to stop and sit. She reported that she must lie
down for about 30 minutes every two hours, and cannot pay attention for more
than five minutes. But some of Claimant’s activities contradict those allegations.
See Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014) (holding that an ALJ
may discount a claimant’s testimony when the claimant’s activities "are
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incompatible with the severity of symptoms alleged"). For example, after
Claimant’s car got stuck in the mountains, she cut a fallen tree and moved it from
the road. She succeeded after "many hours" of physical labor. She spent four
hours in the woods on another occasion and expressed an interest in obtaining a
license to hunt from her vehicle. As for her more routine activities, Claimant
vacuums, cares for her five dogs, does laundry, repaired her fence, and shops for
groceries. She also drives her son when he goes hunting. And she plays online
games and reads the news on her iPad. The ALJ was sufficiently specific in
inferring, from Claimant’s testimony and anecdotal notes in her treatment records,
that "she is generally quite functional." See Tommasetti, 533 F.3d at 1038 ("The
ALJ's findings will be upheld if supported by inferences reasonably drawn from
the record . . . ." (internal quotation marks omitted)).
4. The ALJ failed to account for the time Claimant spends attending medical
appointments in the hypothetical scenarios posed to the vocational expert and in
the residual functional capacity assessment. Contrary to the government’s
argument, Claimant preserved the issue for appeal. Claimant has presented
evidence sufficient to establish the possibility that the frequency of her medical
appointments may inhibit her ability to work on a "regular and continuing basis."
Social Security Ruling 96–8p, 1996 WL 374184, at *2 (S.S.A. July 2, 1996). We
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remand for further consideration and development of the record on this issue. The
ALJ should consider, for example, the need to schedule all appointments during the
workweek or workday, the need to miss an entire workday for each appointment,
and whether the need for this number of appointments is ongoing.
5. The record does not require the ALJ to find Claimant disabled, even if the
ALJ reconsiders the evidence in light of Claimant’s time spent attending medical
appointments. Thus, we decline to exercise our discretion to remand for an award
of benefits. Garrison, 759 F.3d at 1020–21. Instead, we remand for further
proceedings.
The parties shall bear their own costs on appeal.
AFFIRMED IN PART, REVERSED IN PART, REMANDED.
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