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NOT FOR PUBLICATION FEB 08 2013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 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 Hirokawa’s finding that Chang had a “poor” 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, 231 F.3d 1104, 1107–08 (8th Cir. 2000) (the word “fair” in a physician’s

report should be read in light of the entire record).

The ALJ rejected Hirokawa’s finding that Chang had a “poor” ability to

complete a normal workday or workweek because, according to the ALJ, Hirokawa

based this finding on Chang’s “poor motivation.” The Commissioner argues that

what the ALJ intended to communicate with this delphic statement was that

Hirokawa should have discredited Chang’s subjective complaints because the ALJ

2 himself found Chang not credible. See Fair v. Bowen, 885 F.2d 597, 605 (9th Cir.

1989) (ALJ may disregard a physician’s opinion that is based on the claimant’s

subjective complaints where ALJ has already properly discredited claimant’s

subjective complaints). But because we cannot engage in “post hoc

rationalizations that attempt to intuit what the [ALJ] might have been thinking,”

Bray v. Comm’r, 554 F.3d 1219, 1226 (9th Cir. 2009), we cannot affirm based on a

rationale the ALJ never specifically articulated. Hirokawa concluded Chang’s

depression prevented her from completing a normal workweek, and found Chang

was “open and honest” and did not seem to be “exaggerating symptoms.” If the

ALJ wishes to reject those findings, he himself must articulate specific and

legitimate reasons for doing so.

The ALJ also concluded Hirokawa erroneously based his finding on

“cultural differences,” this statement is even less clear than the ALJ’s statement

about Chang’s “poor motivation.” Hirokawa did indeed find that Chang’s

difficulty performing cognitive tests during the evaluation might have been due to

“cultural issues,” but there is no support for the conclusion that Hirokawa based

the particular finding at issue—Chang’s poor ability to get through a

workweek—on “cultural differences.” Cf. Saelee v. Chater, 94 F.3d 520, 522 (9th

3 Cir. 1996) (ALJ referred to cultural tendencies because physicians themselves

suggested those tendencies might explain a not credible claimant’s symptoms).

We reverse because the ALJ failed to state specific and legitimate reasons

supported by the record for rejecting Hirokawa’s findings. On remand, the district

court shall refer this case to the ALJ for reconsideration of Chang’s application for

benefits.

REVERSED and REMANDED.

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FILED

Chang v. Astrue, 11-16362 FEB 08 2013

MOLLY C. DWYER, CLERK

KLEINFELD, Senior Circuit Judge, dissenting: U .S. C O U R T OF APPE ALS

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.1

The majority bases its reversal on the theory that the agency inadequately

justified 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 1 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 working.

Cultural differences may, in combination with a medical disability, further limit

ability to work, but are not themselves a medical disability.

Second, Dr. Hirokawa was not a treating physician. The higher level of

deference for a treating physician’s opinion has no application to this opinion by a

consulting psychologist.2

The ALJ thought that although Chang had medical impairments, her

“statements concerning the intensity, persistence and limiting effects of these

symptoms are not entirely credible.” He articulated particularized reasons for why

he thought so. There is substantial evidence in the record as a whole for his view.

A consulting physician’s report by two physicians characterizes Chang’s

2 Hiler v. Astrue, 687 F.3d 1208, 1212 (2012) (“[G]enerally a treating physician’s opinion carries the most weight of the various types of physician testimony.”).

2 credibility as “partial.” This physician’s report says that her “fairly [normal]

physical exam does not support alleged degree of limitation of physical.” A

different physician who performed a comprehensive internal medicine evaluation

characterized her as a “poor historian.”

Chang may or may not be medically disabled. The ALJ may or may not be

correct in his conclusion that she exaggerated her symptoms. “Where evidence is

susceptible to more than one rational interpretation, it is the ALJ’s conclusion that

must be upheld.”3 Because we must defer to the agency if substantial evidence on

the record as a whole supports its conclusion, it does not matter that we might

reasonably read the record differently from the agency. We are obligated by the

standard of review to affirm.4

The ALJ considered the entire record and found that Chang’s statements

about the limiting effects of her symptoms were not entirely credible. Substantial

evidence supports the ALJ’s determination, so we should affirm.

3 Burch, 400 F.3d at 679. 4 42 U.S.C. 405(g); Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (“We may reverse the ALJ’s decision to deny benefits only if it is based upon legal error or is not supported by substantial evidence.”).

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