                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 10 2011

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




                            FOR THE NINTH CIRCUIT



MONICA HUTCHENS,                                 No. 10-35513

              Plaintiff - Appellant,             D.C. No. 6:08-cv-00280-HO

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

              Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Oregon
                    Michael R. Hogan, District Judge, Presiding

                              Submitted May 6, 2011 **
                                 Portland, Oregon

Before: TASHIMA, BEA, and IKUTA, Circuit Judges.

       The ALJ gave specific and legitimate reasons for rejecting Dr. Richardson’s

opinion about the severity of Hutchens’s mental impairments, such as the lack of

support in the treatment record for Dr. Richardson’s diagnoses of borderline

        *
             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).
personality disorder and anxiety disorder and the inconsistency between Dr.

Richardson’s assessments of “marked” restrictions of activities of daily living and

“marked” difficulties in maintaining concentration, persistence, or pace with

Hutchens’s “reports of functioning” and Dr. Richardson’s clinical observation that

Hutchens performed in the average range on cognitive tests, respectively. In

addition, the record as a whole supported the ALJ’s observation that none of

Hutchens’s treating physicians thought her depressive symptoms were of

“sufficient severity to refer her for psychiatric treatment,” because the only

mention of treatment (beyond a prescription for a “modest dose” of Zoloft) was Dr.

Kemple’s recommendation, made more than two years after Dr. Richardson’s

evaluation, that Hutchens seek counseling. Accordingly, the ALJ did not err in

giving little weight to Dr. Richardson’s opinion. See 20 C.F.R. § 404.1527(d)(4);

Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995).

      The ALJ gave clear and convincing reasons for discounting Hutchens’s excess

symptom testimony. Among other reasons, the ALJ noted Hutchens’s inconsistent

statements regarding her daily activities, including the distance she could walk, the

fact that she never reported problems with sitting to any treating physician, the

inconsistency between her alleged disability onset date of April 1, 2003 and Dr.

Valentine’s April 30, 2003 treatment note describing her fibromyalgia as


                                            2
“dramatically improved,” the lack of evidence that staying in bed 18 hours a day was

a “medical necessity,” and the inconsistency between Hutchens’s daily activities and

her claimed limitations. These reasons adequately supported the ALJ’s conclusions.

See Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989). Any error in the ALJ’s

statement that “there [wa]s no evidence” that Hutchens’s use of a cane was a

“medical necessity” was harmless because the ALJ gave other reasons for

discounting Hutchens’s testimony regarding her ability to walk. See Carmickle v.

Comm’r, 533 F.3d 1155, 1162–63 (9th Cir. 2008).

      The ALJ did not err in discounting Adams’s lay witness testimony, because

the ALJ’s reason for doing so, namely that the limitations she alleged were

inconsistent with the activities she described Hutchens as doing (such as light

housework, being a scorekeeper at softball games, and volunteering with children)

was “germane” to Adams. See id. at 1164.

      The ALJ also did not err in discounting the opinions of Hutchens’s treating

physicians. Because there was no evidence that FNP Skinner was “acting as [Dr.

Duncan’s] agent” in treating Hutchens, Gomez v. Chater, 74 F.3d 967, 971 (9th Cir.

1996); see 20 CFR § 404.1513(d)(1), the ALJ needed to provide only a “germane”

reason for giving little weight to Skinner’s opinion. See Turner v. Comm’r, 613 F.3d

1217, 1223–24 (9th Cir. 2010). The ALJ provided such a reason, which was that


                                           3
Skinner’s opinion that Hutchens had communicative, manipulative, and

environmental limitations was inconsistent with the record. There was no evidence

in the treatment record of Hutchens having difficulty speaking, and the only

evidence of environmental and manipulative limitations were Hutchens’s subjective

statements, which the ALJ could reasonably discount after finding Hutchens’s

excess symptom testimony “not entirely credible,” see Bray v. Comm’r, 554 F.3d

1219, 1228 (9th Cir. 2009).1

      Finally, the ALJ’s observation that physical therapist Kahl and Dr. Kemple’s

opinions were inconsistent with “[Hutchens’s] daily activities” was a “specific and

legitimate” reason for giving them little weight. See Lester, 81 F.3d at 830; see also

Burch v. Barnhart, 400 F.3d 676, 680–81 (9th Cir. 2005).

      AFFIRMED.




      1
        To the extent the ALJ erred in stating that the treatment record indicated
that Hutchens possessed “normal muscle strength,” the error was harmless because
the ALJ nevertheless had “a proper basis” by which to reject Skinner’s opinion.
Carmickle, 533 F.3d at 1164.

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