Chang v. Commissioner of Social Security Administration

MEMORANDUM *

The district court affirmed the Commissioner’s denial of Mai Chang’s application for Supplemental Security Income, and Chang now appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291 and reverse.

Chang contends the ALJ rejected findings of an examining physician, Dr. Greg Hirokawa, without providing the requisite “specific and legitimate reasons” supported by substantial evidence in the record. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir.1995). Specifically, Chang argues the ALJ (1) misinterpreted the word “fair” in Hirokawa’s report; and (2) provided an inadequate explanation for rejecting Hiro-kawa’s finding that Chang had a “poor” *699 ability to complete a normal workday or workweek without interruption. Chang’s first argument is meritless, her second is not.

Chang presents no persuasive evidence that “fair” is a term of art with a definite and consistent meaning. Consequently, the ALJ did not err in concluding that when Hirokawa used the word “fair” to describe Chang’s abilities in a particular area, he implied no disabling impairment in that area. See Cantrell v. Apfel, 281 F.3d 1104, 1107-08 (8th Cir.2000) (the word “fair” in a physician’s report…

Senior Circuit Judge, dissenting:

I respectfully dissent.

This case could reasonably have been decided either way at the administrative level. The record allows for the interpretation that the claimant is unable to work, but also for the interpretation that she could do something like the work she did before she came to the United States, on a farm, and prefers not to. Because the record as a whole could be read either way, we are required to accept the ALJ’s decision.

The majority bases its reversal on the theory that the agency inadequately justi *700 fied rejecting Dr. Hirokawa’s view. That is not a good enough reason to reverse.

First, Dr. Hirokawa does not clearly state that Chang is medically disabled. He attributes Chang’s limitations to “limited education,” “cultural issues” by which he seems to mean ignorance of things most Americans know (like what “birds of a feather flock together” means), and depression: He attributed her “poor” ability to complete a normal workday or workweek to “depressive symptoms, fatigue, and poor motivation.” Poor motivation may be a medical disability, if caused by clinical depression, and may not be, if caused by a preference for not…

FILED

NOT FOR PUBLICATION FEB 08 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

MAI CHANG, No. 11-16362

Plaintiff - Appellant, D.C. No. 1:10-cv-01097-JLT

v.

MEMORANDUM *

COMMISSIONER OF SOCIAL

SECURITY ADMINISTRATION,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern District of California Jennifer L. Thurston, Magistrate Judge, Presiding

Argued and Submitted November 6, 2012 San Francisco, California

Before: KLEINFELD, BERZON, and MURGUIA, Circuit Judges.

The district court affirmed the Commissioner’s denial of Mai Chang’s

application for Supplemental Security Income, and Chang now appeals. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and reverse.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Chang contends the ALJ rejected findings of an examining physician, Dr.

Greg Hirokawa, without providing the requisite “specific and legitimate reasons”

supported by substantial evidence in the record. Lester…