Francine Huerta v. ANDREW M. SAUL, Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCINE HUERTA,
Plaintiff-Appellant,
v.
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
No. 19-15402
D.C. No. 5:18-cv-00563-SVK
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Susan G. Van Keulen, Magistrate Judge, Presiding
Argued and Submitted 15, 2021
San Francisco, California
Before: SCHROEDER, BYBEE, and R. NELSON, Circuit Judges.
Dissent by Judge SCHROEDER
Francine Huerta appeals the district court’s order affirming the Social
Security Commissioner’s denial of her application for disability benefits. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
“We review de novo a district court’s judgment upholding the denial of
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
FEB 1 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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social security benefits.” Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010)
(citation omitted). We will only reverse the decision of an Administrative Law
Judge (ALJ) “if it is not supported by substantial evidence or is based on legal
error.” Id. (quotation marks and citation omitted).
1. Huerta contends that the ALJ did not give sufficient weight to the
findings of three treating and examining physicians: Dr. Elaina Guerin, Dr. H.
Michael Jaffin, and Dr. Oscar Abeliuk. An ALJ may only reject an uncontradicted
opinion of a treating or examining physician for “clear and convincing reasons.”
Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (quotation marks and citation
omitted). However, when “there is legitimate conflicting testimony by” even a
non-treating or non-examining physician, Andrews v. Shalala, 53 F.3d 1035, 1042
(9th Cir. 1995), the ALJ only needs to state “specific and legitimate reasons that
are supported by substantial evidence in the record” to reject the testimony. Lester,
81 F.3d at 830–31 (citation omitted).
Dr. Guerin found Huerta’s migraines and related ailments would frequently
interfere with her attention and concentration, require unscheduled hour-long
breaks, and likely result in Huerta missing work more than four times a month.
However, the ALJ noted that those findings are contradicted by the findings of
other physicians and other evidence in the record. For example, Huerta did not
consistently raise migraine symptoms to Dr. Jaffin. Another physician found

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medication improved her migraine symptoms. Her mental status exams were
“largely unremarkable.”
Huerta suggests that the ALJ did not give sufficient weight to Dr. Jaffin’s
opinion that she was unable to work from July 2012 to December 2013 and that
she could not engage in prolonged standing, walking, squatting, or bending.
However, the ALJ correctly notes that whether Huerta is unable to work is an issue
reserved for the Commissioner. 20 C.F.R. § 404.1527(d)(1). In addition, Dr.
Jaffin’s failure to define “prolonged” prevented that finding from providing much
insight. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). And Dr.
Jaffin’s more specific findings do not suggest such severe physical restrictions.
Finally, the ALJ properly weighed Dr. Abeliuk’s findings that Huerta could
not stand or walk for more than 50 minutes without an additional break and that
she could not walk on uneven terrain, kneel, squat, or climb stairs. The ALJ
accounted for the prolonged standing and walking restrictions by including a
sit/stand option in the residual functional capacity analysis. And the additional
movement restrictions are contradicted by other physicians’ opinions and her
ability to walk and function without a brace or a cane.
In summary, the ALJ properly weighed the physicians’ findings by
highlighting contradictory physicians’ opinions and “specific and legitimate
reasons . . . supported by substantial evidence in the record” to disregard some of

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their findings. Lester, 81 F.3d at 830–31 (citation omitted).
2. Huerta argues the ALJ failed to properly credit her testimony about
her symptoms. An ALJ can “reject the claimant’s testimony about the severity of
the symptoms” by “giv[ing] specific, clear and convincing reasons for the
rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (quotation
marks, citations, and footnote omitted). The ALJ did just that.
The ALJ highlighted that Huerta was inconsistent in describing her
migraines and related symptoms. Similarly, her alleged mental and physical
symptoms were more severe than what several physicians found. In addition, her
conservative treatment of her mental impairments and her daily activities,
including occasional driving and household chores, undermined her description of
the severity of her ailments. These are “specific, clear, and convincing reasons” to
reject Huerta’s testimony. Id.
3. The ALJ properly discounted the testimony of Huerta’s husband, Mr.
Huerta. If an ALJ can “give reasons that are germane to each witness,” he need
not credit lay witness testimony. Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir.
1993). Here, the ALJ correctly noted Mr. Huerta’s testimony regarding the
severity of symptoms was generally inconsistent with the “objective medical
evidence.” In addition, the ALJ also noted Mr. Huerta’s “inherent bias” as
husband of the claimant. Together, these are sufficient reasons to discount Mr.

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Huerta’s testimony. See Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006).
4. Huerta also challenges the ALJ’s residual functional capacity
evaluation and conclusion that Huerta could perform past work as a hospital
admitting clerk. But these challenges are based on the failed arguments that the
ALJ improperly weighed the findings of the physicians and the testimonies of
Huerta and her husband. Therefore, these challenges also fail. Based on this
conclusion, we need not discuss the ALJ’s finding regarding alternative work
opportunities.
AFFIRMED.

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Francine Huerta v. Andrew Saul, No. 19-15402
Schroeder, Circuit Judge, dissenting:
I cannot agree with my colleagues that the ALJ provided good reasons for
rejecting the findings and recommendations of the treating physicians. When there
are conflicting opinions among doctors, the ALJ can only reject a treating
physician’s opinions by providing “specific and legitimate” reasons supported by
substantial evidence. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014)
(quoting Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)).
Ms. Huerta suffered a serious injury while at work as an emergency room
intake clerk. She slipped and landed hard on one knee. She thereafter began to
suffer headaches, causing stroke-like weakness and pain on one side. Her treating
physician for the knee injury was Dr. Jaffin, an orthopedic surgeon. He
consistently reported that she was not able to return to work when filling out the
required “Primary Physician’s Progress Report” for workers compensation. The
ALJ rejected the assessments out-of-hand as ones that only the Commissioner
could make, but they were clearly a part of the regular course of treatment and
diagnosis provided and should not have been discounted.
For her headaches, Ms. Huerta saw Dr. Guerin, who effectively said the
impairments rendered Ms. Huerta incapable of full-time work because she would
need to miss work more than four times a month. The ALJ concluded that Dr.
FILED
FEB 1 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Guerin’s assessment was overly restrictive because she was advocating for the
patient. The ALJ supported his conclusion by noting that Huerta did not raise the
recurrent migraine symptoms to Dr. Jaffin. That observation, to me, is less than
probative since Dr. Jaffin was an orthopedic surgeon treating her knee injury. I
doubt most folks would discuss headaches with him.
Finally, the record shows that Ms. Huerta had a close relationship with her
young daughter, drove her to school a few times a week, opted for conservative
treatment, and tried to do housework when she was able. It is not obvious why
these otherwise laudable efforts conflict with her treating doctors’ assessments that
she was unable to perform full-time work.
In my view, the record contains no legitimate, articulated basis for rejecting
the opinions of Dr. Guerin or Dr. Jaffin. Since the record is fully developed, and
the improperly discredited evidence would require a finding of disability, Ms.
Huerta should be awarded benefits. See, e.g., Treichler v. Comm'r of Soc. Sec.
Admin., 775 F.3d 1090, 1100-01 (9th Cir. 2014); Moisa v. Barnhart, 367 F.3d 882,
887 (9th Cir. 2004). I therefore respectfully dissent.

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