                                                                           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                            NOT FOR PUBLICATION                             JUN 05 2013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

                                             2
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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