FILED
NOT FOR PUBLICATION JUN 05 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROSEMARY COSTA, No. 12-35345
Plaintiff - Appellant, D.C. No. 3:10-cv-00786-JE
v.
MEMORANDUM *
COMMISSIONER OF SOCIAL
SECURITY,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Argued and Submitted May 8, 2013
Portland, Oregon
Before: GOODWIN, REINHARDT, and HURWITZ, Circuit Judges.
Despite determining that Rosemary Costa had several impairments, an
administrative law judge (ALJ) concluded that she retained the residual functional
capacity to perform her past relevant work. The Social Security Commissioner
accordingly denied Costa’s application for disability benefits, and the district court
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
affirmed.
1. Costa asserts that the ALJ failed to provide clear and convincing reasons for
rejecting her treating physician’s opinion. See Lester v. Chater, 81 F.3d 821, 830 (9th
Cir. 1995). The ALJ, however, provided sufficient reasons, citing inconsistencies
between the physician’s 2009 report and previous treatment records. See Bayliss v.
Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). The ALJ also noted that the opinion
was based in part on Costa’s self-reporting, which the ALJ found not reliable. See
Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). And, the ALJ noted a
physical therapist’s evaluation and the analyses by two non-treating physicians, all of
which were contrary to the treating physician’s opinion. See Lester, 81 F.3d at 832.
2. Costa also challenges the ALJ’s rejection of her testimony about her
disabilities. The ALJ provided adequate reasons for doing so, finding that the medical
evidence did not support Costa’s testimony. The ALJ also found that Costa had
reasons for not working unrelated to her medical condition. See Thomas v. Barnhart,
278 F.3d 947, 959 (9th Cir. 2002); Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir.
2001).
3. Costa claims that the ALJ erred in rejecting her husband’s testimony. But
the ALJ provided sufficient reasons for doing so, noting that the testimony was
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inconsistent with Costa’s in several respects.
4. Finally, Costa argues that the ALJ misclassified her past relevant work as
that of a salesperson or garment sorter – both of which are “light” work – as opposed
to that of a laborer, which is “medium” work. The Vocational Expert (“VE”) opined
that Costa could perform light – but not medium – work. The record on this issue is
not sufficient to allow appellate review. Costa reported that her past work at thrift
stores was as a salesperson, garment sorter, and laborer. Costa’s work history report
stated that when she worked at thrift stores, she “frequently” (for 1/3-2/3 of a work
day) moved items of about 50 pounds. In characterizing Costa’s past relevant work
as light, the ALJ simply cited to the VE’s testimony. But the VE had only noted that
Costa’s self-reporting might have supported either classification.
Although we defer to the ALJ’s factual determinations, the record does not
indicate whether he found Costa’s description of her past work inaccurate, concluded
that the laborer duties were relatively infrequent, or instead concluded that the work
should be classified according to its least demanding function. The latter would be
error. “In classifying prior work, the agency must keep in mind that every occupation
involves various tasks that may require differing levels of physical exertion. It is error
for the ALJ to classify an occupation according to the least demanding function.”
Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1166 (9th Cir. 2008) (internal
3
quotation omitted) (finding improper a classification of past relevant work based on
20% of the duties performed).
Because the ALJ made no findings as to what portion of Costa’s previous
relevant work was light or medium, we cannot determine whether his residual
functioning capacity classification was supported by substantial evidence. We
therefore affirm in part, vacate in part, and remand with instructions to return the
claim to the Commissioner for further proceedings consistent with this disposition.
AFFIRMED IN PART, VACATED IN PART, and REMANDED with instructions.
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