Mark Boisjolie v. Carolyn Colvin , 585 F. App'x 515 ( 2014 )

FILED
NOT FOR PUBLICATION OCT 21 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK L. BOISJOLIE, No. 13-35894
Plaintiff - Appellant, D.C. No. 2:12-cv-00334-JLQ
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Justin L. Quackenbush, District Judge, Presiding
Submitted August 18, 2014**
Before: D. NELSON, LEAVY, and THOMAS, Circuit Judges.
Mark L. Boisjolie appeals the district court’s judgment affirming the
Commissioner of Social Security’s decision denying his application for disability
insurance benefits under Title II of the Social Security Act. Boisjolie contends that
*
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). Appellant’s unopposed
motion to submit this case on the briefs is GRANTED.
an administrative law judge (“ALJ”) erred in giving limited weight to the opinion
of examining psychologist Frank Rosekrans, Ph.D., and little weight to advanced
registered nurse practitioner Debra L. Miller. We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
We review the district court’s order de novo. Andrews v. Shalala, 53 F.3d
1035, 1039 n.1 (9th Cir. 1995). We may set aside the denial of benefits only if it is
not supported by substantial evidence or is based on legal error. 42 U.S.C.
§ 405(g); Andrews, 53 F.3d at 1039.
The ALJ properly rejected Dr. Rosekrans’s unsupported opinion that
Boisjolie had certain “marked” and “moderate” limitations affecting his ability to
work. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir.
2009); Burkhart v. Bowen, 856 F.2d 1335, 1339 (9th Cir. 1988) (permitting ALJ to
reject medical opinion not supported by objective findings). These limitations
were unsupported by Dr. Rosekrans’s own observations regarding Boisjolie’s
mental status exam findings, were inconsistent with other evidence in the record,
and were contradicted by three non-examining experts’ opinions. See Andrews,
53 F.3d at 1041 (explaining that non-examining source’s report may serve as
substantial evidence and may be used to reject an examining physician’s opinion, if
it is consistent with and supported by other evidence in the record).
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The ALJ also properly rejected Ms. Miller’s unsupported opinion that
Boisjolie had the residual functional capacity to perform sedentary work. See
Bray, 554 F.3d at 1228; Burkhart, 856 F.2d at 1339. Moreover, Ms. Miller’s
opinion was inconsistent with the medical record, including the opinion of one
expert who conducted his own examination of Boisjolie and concluded that he
could perform light work, and the opinions of three experts who agreed after
thoroughly reviewing the record. See Andrews, 53 F.3d at 1041.
AFFIRMED.
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