Perez v. Astrue

247 F. App'x 931

Opinions

MEMORANDUM.

Footnotes

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Susana Perez (“Perez”) applied for disability insurance benefits and Supplemental Security Income benefits under Titles II and XVI of the Social Security Act. Perez’s application was denied at all levels of the administrative process and by the district court.¹ This Court has jurisdiction under 28 U.S.C. § 1291 to review the decision below.

The administrative law judge (“ALJ”) determined that Perez’s mental impairment was not severe (“mild difficulties in social functioning”). This finding was supported by substantial evidence in the record. In evaluating the alleged mental impairment, the ALJ relied more heavily upon the opinions of examining psychiatrist, Dr. Paculdo, and of non-examining psychiatrist, Dr. Pasricha, than on those of treating family practice physician, Dr. Perez, and of consulting orthopedist, Dr. Grogan. The ALJ set forth specific, legitimate reasons for doing so. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir.2002).

As to Perez’s claimed physical impairments, the ALJ determined that Perez could perform her past relevant work and is, therefore, not disabled. A claimant is not disabled under the Social Security Act if she can perform her past relevant work either as she actually performed it, or as the work is ordinarily performed in the national economy. SSR 82-61. In concluding that Perez could perform her past relevant work, the ALJ considered vocational expert (“VE”) testimony in conjunction with other substantial evidence in the record, including the Dictionary of Occupational Titles and Perez’s Disability Report and Work History Report in which she described her sales job. See Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir.2001) (VE testimony is not the sole source of evidence in making step four determination). The ALJ’s findings regarding Perez’s residual functional capacity flowed from a detailed credibility determination, which was supported by substantial evidence. Thus, the ALJ’s job descriptions were sufficiently detailed. See Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir.2001). Moreover, because the VE testified that a demonstrator job, as defined by the Dictionary of Occupational Titles, was light work that could be performed without overhead reaching, the ALJ’s mistaken quotation of the VE’s testimony did not affect the ALJ’s determination. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.2005).

The ALJ gave specific, legitimate reasons for crediting the opinions of consulting orthopedist Dr. Tom over those of Drs. Perez and Grogan, which reasons were supported by substantial evidence. See Thomas, 278 F.3d at 957. A review of the record in this case, as well as of the ALJ’s written findings and decision, reveal that the ALJ satisfactorily met her burden of “setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating [the ALJ’s] interpretation thereof, and making findings.” Id. (quotation marks omitted). The ALJ’s findings regarding the medical evidence presented in this case should not be disturbed.

The ALJ did not err in discounting Perez’s claimed inability to speak English. The ALJ made factual findings based on her direct observation of Perez at the hearing and on other evidence in the record, and concluded that Perez had “a greater ability to communicate in English than [Perez] admitted at the hearing.” This case is not like Pinto, on which Perez relies, because the ALJ here did not make a factual finding that Perez was illiterate in English. See Pinto, 249 F.3d at 843 n. 1. Moreover, Perez’s claimed inability to speak English is tangential to Perez’s disability claim, which is based on pain and depression, not on language difficulties. Id. at 847 n. 5.

Finally, the ALJ’s credibility determination was proper. The ALJ, used “ordinary techniques of credibility evaluation” and gave “specific, clear and convincing reason[s]” supported by substantial evidence for the determination. Id. at 960 (quotation marks omitted). The ALJ also noted that Perez failed to seek treatment. See Burch, 400 F.3d at 681. The ALJ discounted Perez’s claim that she could not afford treatment because Perez found money to pay Dr. Grogan for the purposes of finding her disabled. The ALJ also noted that Perez was given conservative treatment even when she did see a doctor. Moreover, the ALJ noted other factors going toward the credibility determination including: Perez’s medical records did not support her claims of severe medication side-effects; Perez was inconsistent about her ability to communicate in English and in her reports about her past relevant work; and a psychiatrist had stated that Perez appeared to exaggerate her symptoms. The dissent concludes it was improper to consider Perez’s failure to seek treatment in this case because Perez testified that she could not afford treatment. The dissent also suggests a different way of viewing the record evidence on which the ALJ based her credibility decision. However, “‘[w]e must uphold the ALJ’s decision where the evidence is susceptible to more than one rational interpretation,’ ” Burch, 400 F.3d at 680-81 (quoting Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir.1989)); “we may not engage in second-guessing,” Thomas, 278 F.3d at 959. Therefore, we do not disturb the ALJ’s credibility determination here.

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1

. The parties consented to a hearing before a United States Magistrate Judge.