                                                                                 FILED
                            NOT FOR PUBLICATION                                  JAN 11 2010

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


PATRICIA J. PEARSON,                             No. 08-35140

              Plaintiff - Appellant,             D.C. No. CV-06-01521-MDC

  v.
                                                 MEMORANDUM *
MICHAEL J. ASTRUE,
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,

              Defendant - Appellee.


                    Appeal from the United States District Court
                             for the District of Oregon
                    Mark D. Clarke, Magistrate Judge, Presiding

                         Argued and Submitted May 8, 2009
                                 Portland, Oregon

Before: W. FLETCHER, BEA and IKUTA, Circuit Judges.

       Patricia J. Pearson appeals the district court’s judgment affirming the

Administrative Law Judge’s (“ALJ’s”) denial of Social Security benefits. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      We review the district court’s order affirming the ALJ’s denial of benefits de

novo. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). We must affirm

the ALJ’s decision if the ALJ applied the correct legal standards and substantial

evidence supports the decision. Id. Substantial evidence is relevant evidence that

a reasonable mind would accept as adequate to support the conclusion. Id. “The

evidence must be more than a mere scintilla but not necessarily a preponderance.”

Id. (quotation marks omitted). Where the evidence is susceptible to more than one

rational interpretation, we must uphold the ALJ’s conclusions. Id. Thus, even if

the weight of the evidence is against the ALJ’s conclusion, so long as there

substantial evidence to support the conclusion, we must affirm.

      Here, the ALJ exercised her discretion to credit the reports of doctors who

said Pearson is capable of performing her past work as a housekeeper (Drs.

Dragovich and Goodman) over the reports of doctors who said she was not (Drs.

Bartol and Herz). Because two doctors opined Pearson could work and had no

impairment that met or equaled a listed impairment, the record contains substantial

evidence to support the ALJ’s finding that Pearson is not disabled, if there is

substantial evidence to support the ALJ’s decision to discredit the reports of

Pearson’s treating physicians. There is.

      The ALJ articulated specific and legitimate reasons for rejecting the

opinions of Pearson’s treating physician Dr. Herz, which are supported by
substantial evidence in the record. First, the ALJ noted that Dr. Herz’s assessment

“seems to have relied largely on the claimant’s subjective comments,” and the ALJ

found Pearson to be not-credible. Second, the ALJ noted that Dr. Herz’s

assessment was not supported by his objective observations of Pearson during the

examination nor Pearson’s presentation at her first visit. These reasons are

sufficient for the ALJ to disregard Dr. Herz’s testimony if they are supported by

substantial evidence. See Tommasetti, 533 F.3d at 1041.

      The ALJ’s first reason is supported by substantial evidence. To make the

adverse credibility determination, the ALJ noted Pearson’s descriptions of her

daily activities did not comport with her claims of being debilitated by fatigue,

exhaustion and depression. The ALJ also noted Pearson had occasionally gone to

treatment providers to get a disability assessment, but then had stopped seeing the

treatment providers once she had a note stating she was disabled. The ALJ further

noted Pearson would report very low functioning levels to her doctors, but the

reports of her visits tended to show she presented as coping well, with bright

affect, and was cheerful. These reasons are substantial evidence to support the

ALJ’s adverse credibility determination. See id. at 1039.

      There is also substantial evidence in the record to support the ALJ’s second

reason to reject Dr. Herz’s opinion: that Dr. Herz’s mental residual function

capacity report was contradicted by his objective observations of Pearson during
her first visit. For example, Dr. Herz’s report stated Pearson was limited in her

ability to remember locations and work-like procedures, to understand and

remember simple or detailed instructions, to carry out simple or detailed

instructions, and to make simple work related decisions. However, Dr. Herz’s

“Objective Findings” of Pearson state, “she answers questions appropriately

without tangentiality and is very articulate,” which suggests that Pearson could

follow simple instructions as she was able to stay on point and answer his

questions; “she appeared to have normal functioning of her immediate, recent and

remote memory,” which suggests she would be able to remember work-like

procedures, instructions and locations; and finally, Dr. Herz observed Pearson’s

“[i]nsight and judgment were felt to be normal and thinking was abstract,” which

suggests she would be able to make work-related decisions.

      The above constitutes substantial evidence to support the ALJ’s conclusion.

Under our deferential standard of review, we affirm.

      AFFIRMED.
