NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FILED
NOV 01 2013
LUIS FLORES, No. 11-17786 MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Plaintiff - Appellant, D.C. No. 4:10-cv-04101-DMR
v.
MEMORANDUM*
CAROLYN W. COLVIN ,****
Commissioner Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Donna M. Ryu, Magistrate Judge, Presiding
Submitted October 16, 2013**
San Francisco, California
Before: THOMAS and McKEOWN, Circuit Judges, and BENNETT, District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Mark W. Bennett, District Judge for the U.S. District
Court for the Northern District of Iowa, sitting by designation.
****
Carolyn W. Colvin is substituted for her predecessor, Michael J.
Astrue, as Commissioner of Social Security. Fed R. App. P. 43(c)(2).
Plaintiff-Appellant Luis Flores appeals from the district court’s judgment
affirming the Commissioner of Social Security’s denial of his application for
Social Security disability insurance benefits and supplemental security income
under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 40 and 1381 et
seq. Flores contends the ALJ erred in: (1) failing to properly credit the opinions of
his treating physicians; (2) failing to properly evaluate his testimony concerning
his functional limitations and pain and his English ability; (3) failing to credit the
testimony of the vocational expert (“VE”) in response to hypothetical questions
that Flores contends accurately reflected his functional limitations; and (4) basing
his finding at step five of the sequential evaluation process on testimony of the VE,
that was inconsistent with the Dictionary of Occupational Titles (“DOT”). We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review de novo the district court’s decision upholding the denial of
benefits. Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). We must affirm the
denial of benefits unless it is based on legal error or the findings of fact are not
supported by substantial evidence. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir.
2012).
1. The ALJ gave “specific and legitimate reasons supported by
substantial evidence” for rejecting a portion of the opinions of Drs. Davis and
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Hearst, two of Flores’s treating physicians. Lester v. Chater, 81 F.3d 821, 830 (9th
Cir. 1995) (internal citation omitted); see also Widmark v. Barnhart, 454 F.3d
1063, 1066–67 (9th Cir. 2006) (holding that the “specific and legitimate” standard
applies where there is a conflict between the opinions of an examining physician
and a reviewing physician). The ALJ properly rejected a portion of Dr. Davis’s
opinion because his opinion was ten years old, two more recent opinions by other
treating physicians contained contradictory information, and the reviewing
physician’s opinion, on which the ALJ relied, was based on a review of the
complete case record, which included medical reports from specialists who
provided more detailed and comprehensive information than what was available to
Dr. Davis. The ALJ also properly rejected the opinion of Dr. Hearst because his
opinion was “brief, conclusory, and inadequately supported by clinical findings.”
Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012) (internal citation and
alteration omitted).
2. If an ALJ determines “the claimant has presented objective medical
evidence of an underlying impairment which could reasonably be expected to
produce the pain or other symptoms alleged,” and “there is no evidence of
malingering, the ALJ can reject the claimant’s testimony about the severity of her
symptoms only by offering specific, clear and convincing reasons for doing so.”
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Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (internal quotation
marks and citations omitted). Flores met the initial requirement because he
provided evidence that his underlying impairments could reasonably be expected
to produce some degree of pain, and there was no finding by the ALJ that Flores
was “malingering.” However, the ALJ provided clear and convincing reasons for
his adverse credibility finding concerning Flores’s pain testimony. First, Flores’s
subjective statements about the severity of his pain were inconsistent with the
medical evidence in the record. Second, Flores’s daily activities were not
indicative of the degree of pain he alleged. These reasons provide substantial
evidence to support the ALJ’s adverse credibility determination. See Tommasetti
v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); Lingenfelter, 504 F.3d at 1040.
The ALJ also offered clear and convincing reasons for his adverse credibility
finding that Flores could understand basic verbal English. First, Flores was taking
courses in English and math at a community college. Second, Flores worked for
twelve years in a grocery store and was required to converse, at least to some
degree, in English with his supervisors, co-workers, and customers. See Burch v.
Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (holding that when evidence is
susceptible to more than one rational interpretation, the ALJ’s conclusion must be
upheld).
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3. Substantial evidence supports the ALJ’s exclusion of a “reaching”
restriction from the hypothetical question posed to the VE. The ALJ’s exclusion of
that restriction was based on the proper rejection of a portion of Dr. Davis’s
opinion. Thus, because the Residual Functional Capacity (“RFC”) assessment was
not defective and the hypothetical incorporated all of the physical limitations from
the RFC, the hypothetical was proper. See Valentine v. Comm’r of Soc. Sec., 574
F.3d 685, 690 (9th Cir. 2009) (explaining that the hypothetical question is derived
from the RFC).
4. The ALJ erred by failing to inquire whether the VE’s testimony
regarding the job requirements for ticket taker (DOT 344.667–010) conflicted with
the DOT. SSR 00-4p, 2000 WL 1898704 (Dec. 4, 2000); see Massachi v. Astrue,
486 F.3d 1149, 1152–53 (9th Cir. 2007). However, the ALJ’s failure to follow the
procedural requirements of SSR 00-4p was harmless because the VE
acknowledged that his description of the position varied from the DOT’s and he
offered reasonable explanations for using a differing description. See Massachi,
486 F.3d at 1154 n.19 (observing ALJ’s failure to ask VE whether her testimony
conflicted with the DOT and, if so, whether there was a reasonable explanation for
the conflict was a harmless procedural error where no conflict existed or the VE
provided “sufficient support for her conclusion” justifying any potential conflicts).
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The VE testified that although the DOT does not discuss a sit-stand option, his
testimony was limited to positions with that option. He also described why the
DOT’s language and math ability requirements did not disqualify Flores from the
position. Substantial evidence therefore supports the ALJ’s reliance on the VE’s
testimony.
For all the foregoing reasons, the judgment of the district court is
AFFIRMED.
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