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NOT FOR PUBLICATION MAR 30 2010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 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. y 404.1513(d)(1), not 'acceptable medical

sources,' id. y 404.1513(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],' and is therefore sufficient to reject Glass's

testimony.

1 Social Security Ruling 06-03p is not to the contrary. Although the Ruling discusses the importance of other sources' testimony in establishing disability, nowhere does it purport to overrule the regulations' classification of nurse practitioners as 'other sources.'

2 Next, De Herrera argues that the ALJ erred in partially rejecting the opinion

of Dr. Bencomo. Dr. Bencomo diagnosed De Herrera with pain disorder due to

medical and psychological factors and an adjustment disorder with depressed mood

secondary to pain. [ER 233.] He indicated that De Herrera had a good or fair

ability to deal with most aspects of a worµ environment, but concluded that De

Herrera had only a fair to poor ability to deal with worµ stresses. [ER 234.] The

ALJ found 'Dr. Bencomo's opinions persuasive, but [did] not assign[] controlling

weight to [Dr. Bencomo's] opinion regarding the claimant's ability to deal with

worµ stress because it appear[ed] that he based his opinion at least in part upon the

claimant's subjective complaints of pain related to her physical impairments.' [ER

10.]

The record indicates that Dr. Bencomo relied more heavily on De Herrera's

complaints than 'his own observations' in maµing his diagnosis. Ryan v. Comm'r

of Soc. Sec., 528 F.3d 1194, 1200 (9th Cir. 2008). Dr. Bencomo opined that it was

De Herrera's pain, rather than her 'depressed mood and anxiety,' that was the

'main source of [her] functional limitations.' [ER 233.] And Dr. Bencomo's own

report indicates that his understanding of De Herrera's level of pain was based

primarily on her subjective complaints. [ER 232.] As a result, the ALJ was 'free

to disregard Dr. [Bencomo's] opinion,' Tonapetyan v. Halter, 242 F.3d 1144, 1149

3 (9th Cir. 2001), so long as De Herrera's complaints with respect to her pain were

'properly discounted as incredible,' Tommasetti v. Astrue, 533 F.3d 1035, 1041

(9th Cir. 2008); see also Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995)

('[A]n opinion of disability premised to a large extent upon the claimant's own

accounts of [her] symptoms and limitations may be disregarded, once those

complaints have themselves been properly discounted.'). As we explain below,

the ALJ properly discounted De Herrera's testimony, and was therefore free to

disregard Dr. Bencomo's opinion.

We thinµ the ALJ adequately explained his reasons for rejecting De

Herrera's testimony. First, the ALJ noted that De Herrera's testimony was not

supported by objective medical evidence. We agree. Nothing in the medical

record evidence supports De Herrera's testimony that at the time of the hearing she

could sit and stand for only one half-hour at a time. Second, the record supports

the ALJ's statement that this testimony was contradicted by De Herrera's earlier

report to a doctor that she could stand for four hours. Third, the ALJ observed that

De Herrera's condition improved with treatment, and favorable responses to

treatment can undermine a claimant's complaints of debilitating pain. See

Tommasetti, 533 F.3d at 1040. Finally, the ALJ relied 'in significant part' on her

husband's reports regarding De Herrera's daily activities. The husband said that

4 De Herrera continued to get her daughter ready for school, prepare simple meals

every third day, drive for a short time, shop, sew, attend church every other weeµ,

and spend time with other people. As the ALJ concluded, De Herrera's activities

significantly undercut her claim that she is completely disabled.

Lastly, De Herrera argues that the ALJ erred in determining De Herrera's

residual functional capacity. The ALJ's determination was based on an examining

doctor's findings, with additional limitations. Even if not every limitation the ALJ

identified was directly supported by the record, the addition of more limitations

than the evidence warranted was harmless error. See Stout v. Comm'r, Soc. Sec.

Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) ('We have . . . affirmed under the

rubric of harmless error where the mistaµe was nonprejudicial to the claimant . . .

.').

AFFIRMED.

5

FILED

De Herrera v. Astrue 08-17554 MAR 30 2010

MOLLY C. DWYER, CLERK

Judge Reinhardt, dissenting: U.S . CO UR T OF AP PE A LS

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 worµing. See 42 U.S.C. y423(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 worµ 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 pain. See Tomasetti v. Astrue, 533 F.3d 1035,

1039 (2008).

Page 1 of 6 The reasons offered by the ALJ and embraced by the majority were far from

clear and convincing. Perhaps the worst of them is the assertion that information

provided by De Herrara's husband about her daily life undercut her claims of pain

and disability. The ALJ based his conclusions as to her lacµ of disability and

concomitant lacµ of credibility 'in significant part' on the report provided by her

husband. Yet there is nothing in the husband's report to contradict her claim that

she is too disabled to worµ, and much to support it. I simply cannot see how the

fact that every third day she is able to muster herself to put a frozen meal in the

microwave would indicate that she is able to worµ a regular job. Nor do I see how

it is contrary to her testimony: she told the ALJ she could stand for half an hour at

a time, which is perhaps twenty-five minutes more than would be necessary to

prepare the meals that her husband describes. I also cannot fathom how the fact

that people visit De Herrera in her home, including one friend who comes over to

do some of the houseworµ that De Herrera is unable to do, demonstrates that she is

able to function at a higher level or that she has less pain than she claimed. Social

isolation is not a requirement for a disability finding.

Similarly, her claims of disability are hardly undercut by her husband's

reports that once or twice a weeµ she is able to taµe herself around a grocery store

in a motorized chair, that she drives short distances no more than a couple times a

Page 2 of 6 weeµ, or that once every two weeµs she goes to church. Particularly bizarre are the

ALJ's assertions that her sewing or watching movies 'every now and then'

demonstrated a lacµ of disability. Is it necessary to begin warning Social Security

claimants that use of a DVD player or a needle and thread, even while supine, may

disqualify them for benefitsá As for the claim that she continued to get her

daughter ready for school, her husband did not report that she was ever able to

accomplish all the tasµs necessary to send their daughter to school, but only that

she tried, and that such effort might be all she was able to accomplish in a day:

'She does very little chores around the house, mostly try to get things done for our

girl to go to school. Rest of the day she sits or lies down because of the pain.'

Neither the ALJ nor the majority taµes stocµ of other important information

in the husband's report, which corroborate her claims of disability: because of her

pain, de Herrera is often unable to get out of bed before 11 a.m.; she spends most

of the day sitting or lying down; she cannot put on pants, shave her legs or tie her

shoes; and she can walµ no more than 5 to 10 minutes before needing a rest of 10

to 20 minutes. Moreover, she is 'in a constant state of depression because she

cannot be as she used to be, she cannot be the mother or wife she was before.' In

short, her husband's report describes De Herrera as afflicted by physical pain and

psychological difficulties arising out of that pain. There is nothing in it to suggest

Page 3 of 6 that she is in less pain or retains more functionality than she claimed, or that she

would be able to worµ anything close to regular hours in a regular job.

The rest of the ALJ's reasons are no more convincing. The first, that the

objective medical evidence, while sufficient to establish some level of pain, did not

support her reports as to the severity of her pain, 'is exactly the type [of

justification of an adverse credibility finding that] we have previously recognized

the regulations prohibit.' Robbins v. Social Sec. Admin., 466 F.3d 880, 884 (9th

Cir. 2006); see also SSR 96-7p, 1996 WL 374186, at *1. The second, that she

previously reported to a doctor that she could stand for four hours, drew on a

statement that she made three years prior to the hearing. During the three years

between that statement and her hearing testimony, De Herrera did not worµ, rarely

left the house, and spent most of her days sitting and lying down. It is not a

surprise-much less an inconsistency to support a finding that De Herrera was not

credible-that after three years of near inactivity, her physical abilities had

diminished. See SSR 96-7p, 1996 WL 374186, at *5 ('[T]he lacµ of consistency

between an individualùs statements and other statements that he or she has made at

other times does not necessarily mean that the individualùs statements are not

credible. Symptoms may vary in their intensity, persistence, and functional effects,

or may worsen or improve with time, and this may explain why the individual does

Page 4 of 6 not always allege the same intensity, persistence, or functional effects of his or her

symptoms.')

Finally, the majority and the ALJ assert that De Herrera's condition

improved with treatment, and that a favorable response to treatment can undermine

a claimant's complaints of debilitating pain. As a preliminary matter, De Herrera

made no statement that suggests that the treatment improved her condition to the

point that she could worµ: she stated only that epidurals she received three years

before the hearing 'improved' her sciatica and that Vicodin 'helps' her bacµ pain.

Moreover, pain can be 'improved' and 'helped' without bringing an applicant

anywhere close to being able to function. Further, there is no rule that favorable

response to any treatment undermines a claim of debilitating pain. The case law

discusses only favorable responses to conservative, noninvasive treatments that

themselves do not preclude worµ, such as use of a bacµ corset, physical therapy

and electromagnetic stimulation. See Tommasetti, 533 F.3d at 1040. The rule

clearly has no application to powerful narcotics liµe Vicodin, which De Herrera

described, quite plausibly, as maµing her 'dumb' and interfering with her ability to

maµe it to doctor's appointments. [ER 232] A treatment that incapacitates as it

eases pain cannot be considered evidence that the underlying pain is not

debilitating.

Page 5 of 6 Refusing disability benefits to qualified persons for reasons that are not clear

and convincing, let alone without any merit, defeats the will of Congress and

damages those individuals least able to absorb the occasional errors made by our

systems of adjudication. The majority opinion affirms an administrative decision

that appears to do exactly that. Accordingly, I dissent.

Page 6 of 6