Pearson v. Commissioner Social , 362 F. App'x 602 ( 2010 )

FILED
NOT FOR PUBLICATION JAN 11 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICIA J. PEARSON, No. 08-35140
Plaintiff - Appellant, D.C. No. CV-06-01521-MDC
v.
MEMORANDUM *
MICHAEL J. ASTRUE,
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Mark D. Clarke, Magistrate Judge, Presiding
Argued and Submitted May 8, 2009
Portland, Oregon
Before: W. FLETCHER, BEA and IKUTA, Circuit Judges.
Patricia J. Pearson appeals the district court’s judgment affirming the
Administrative Law Judge’s (“ALJ’s”) denial of Social Security benefits. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
We review the district court’s order affirming the ALJ’s denial of benefits de
novo. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). We must affirm
the ALJ’s decision if the ALJ applied the correct legal standards and substantial
evidence supports the decision. Id. Substantial evidence is relevant evidence that
a reasonable mind would accept as adequate to support the conclusion. Id. “The
evidence must be more than a mere scintilla but not necessarily a preponderance.”
Id. (quotation marks omitted). Where the evidence is susceptible to more than one
rational interpretation, we must uphold the ALJ’s conclusions. Id. Thus, even if
the weight of the evidence is against the ALJ’s conclusion, so long as there
substantial evidence to support the conclusion, we must affirm.
Here, the ALJ exercised her discretion to credit the reports of doctors who
said Pearson is capable of performing her past work as a housekeeper (Drs.
Dragovich and Goodman) over the reports of doctors who said she was not (Drs.
Bartol and Herz). Because two doctors opined Pearson could work and had no
impairment that met or equaled a listed impairment, the record contains substantial
evidence to support the ALJ’s finding that Pearson is not disabled, if there is
substantial evidence to support the ALJ’s decision to discredit the reports of
Pearson’s treating physicians. There is.
The ALJ articulated specific and legitimate reasons for rejecting the
opinions of Pearson’s treating physician Dr. Herz, which are supported by
substantial evidence in the record. First, the ALJ noted that Dr. Herz’s assessment
“seems to have relied largely on the claimant’s subjective comments,” and the ALJ
found Pearson to be not-credible. Second, the ALJ noted that Dr. Herz’s
assessment was not supported by his objective observations of Pearson during the
examination nor Pearson’s presentation at her first visit. These reasons are
sufficient for the ALJ to disregard Dr. Herz’s testimony if they are supported by
substantial evidence. See Tommasetti, 533 F.3d at 1041.
The ALJ’s first reason is supported by substantial evidence. To make the
adverse credibility determination, the ALJ noted Pearson’s descriptions of her
daily activities did not comport with her claims of being debilitated by fatigue,
exhaustion and depression. The ALJ also noted Pearson had occasionally gone to
treatment providers to get a disability assessment, but then had stopped seeing the
treatment providers once she had a note stating she was disabled. The ALJ further
noted Pearson would report very low functioning levels to her doctors, but the
reports of her visits tended to show she presented as coping well, with bright
affect, and was cheerful. These reasons are substantial evidence to support the
ALJ’s adverse credibility determination. See id. at 1039.
There is also substantial evidence in the record to support the ALJ’s second
reason to reject Dr. Herz’s opinion: that Dr. Herz’s mental residual function
capacity report was contradicted by his objective observations of Pearson during
her first visit. For example, Dr. Herz’s report stated Pearson was limited in her
ability to remember locations and work-like procedures, to understand and
remember simple or detailed instructions, to carry out simple or detailed
instructions, and to make simple work related decisions. However, Dr. Herz’s
“Objective Findings” of Pearson state, “she answers questions appropriately
without tangentiality and is very articulate,” which suggests that Pearson could
follow simple instructions as she was able to stay on point and answer his
questions; “she appeared to have normal functioning of her immediate, recent and
remote memory,” which suggests she would be able to remember work-like
procedures, instructions and locations; and finally, Dr. Herz observed Pearson’s
“[i]nsight and judgment were felt to be normal and thinking was abstract,” which
suggests she would be able to make work-related decisions.
The above constitutes substantial evidence to support the ALJ’s conclusion.
Under our deferential standard of review, we affirm.
AFFIRMED.