Maria Becerra De Herrera v. Michael Astrue

MEMORANDUM **

Maria Becerra De Herrera appeals from the district court’s order affirming the Commissioner’s decision to deny her social *773 security disability benefits. She argues that the ALJ made four errors in determining that she was not disabled. We find De Herrera’s arguments unpersuasive and we affirm the judgment of the district court.

De Herrera begins by arguing that the ALJ erred in rejecting the opinion of Nurse Practitioner David Glass. Under the regulations, nurse practitioners are considered “other sources,” 20 C.F.R. § 404.1513 (d)(1), not “acceptable medical sources,” id. § 404.1518(a). As a result, the ALJ could reject Glass’s opinion for “reasons that are germane to [Glass].” 1 Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir.1993).

In rejecting Glass’s testimony, the ALJ explained that Glass’s opinion had been rejected by two reviewing physicians, that Glass’s opinion ran contrary to the weight of the evidence, that Glass’s opinion of complete disability was undermined by the fact that treatment seemed to improve De Herrera’s condition, and that Glass’s opinion was based on De Herrera’s subjective complaints. Each of the ALJ’s reasons is “germane to [Glass],”…

dissenting:

The Social Security Disability Act provides a safety net for those in our society unfortunate enough to be afflicted by disabilities, whether mental, physical or both, that prevent them from working. See 42 U.S.C. § 423 (d)(1)(a). Because the ALJ’s reasons for denying disability benefits to De Herrera were not supported by the evidence before him, I dissent.

Dr. Bencomo’s uncontroverted testimony was that De Herrera has a fair to poor ability to deal with work stress. A vocational expert testified that there are no jobs available for a person with such a condition. Accordingly, had the ALJ credited Dr. Bencomo’s testimony, he would have been compelled to find De Herrera disabled within the meaning of the statute. The ALJ’s entire reasoning for disregarding Dr. Bencomo’s testimony as to this condition was that Dr. Bencomo relied on De Herrera’s subjective complaints of pain, which the ALJ viewed as not credible. Because De Herrera provided objective evidence of an underlying impairment, and there was no affirmative evidence of malingering, the ALJ was required to provide “specific, clear, and convincing reasons” for discrediting her testimony about the severity of her…

FILED

NOT FOR PUBLICATION MAR 30 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO UR T OF AP PE A LS

FOR THE NINTH CIRCUIT

MARIA BECERRA DE HERRERA, No. 08-17554

Plaintiff - Appellant, D.C. No. 2:07-cv-01952-MHM

v.

MEMORANDUM *

MICHAEL J. ASTRUE, Commissioner of Social Security Administration,

Defendant - Appellee.

Appeal from the United States District Court for the District of Arizona Mary H. Murguia, District Judge, Presiding

Argued and Submitted March 11, 2010 San Francisco, California

Before: REINHARDT and BYBEE, Circuit Judges, and GWIN, ** District Judge.

Maria Becerra De Herrera appeals from the district court's order affirming

the Commissioner's decision to deny her social security disability benefits. She

argues that the ALJ made four errors in determining that she was not disabled. We

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable James S. Gwin, United States District Judge for the Northern District of Ohio, sitting by designation. find De Herrera's…