Unpublished Disposition, 914 F.2d 262 (9th Cir. 1987)

MEMORANDUM^* 

We affirm the district court's order of summary judgment in favor of the Secretary of Health and Human Services.

* Appellant Maria Curry underwent corrective single-artery bypass surgery on March 2, 1985. On February 12, 1986, Curry filed applications for disability insurance benefits and supplemental security income benefits. After a hearing, an administrative law judge ("ALJ") issued a six-page decision in which he found that Curry was not disabled. On June 15, 1987, the Appeals Council denied Curry's request for review of the ALJ's decision; this became the final decision of the Secretary.

Curry subsequently filed this action for judicial review of the Secretary's determination that she was not disabled and his attendant denial of disability benefits to her. In January 1989, the district court entered summary judgment in favor of the Secretary.

Curry timely appeals from the district court's judgment; we have jurisdiction under 28 U.S.C. § 1291.

II

We must determine whether the findings of fact of the Secretary are supported by substantial evidence in the record and whether the Secretary properly applied the law. See Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 1985); 42 U.S.C. § 405(g) (1988). The harmless-error rule applies. See Booz v. Secretary of Health and Human Servs., 734 F.2d 1378, 1380-81 (9th Cir. 1984).

* The Secretary determined that Curry was not disabled within the meaning of 42 U.S.C. § 423(d) (1) (A) because she had the residual functional capacity to perform light work. "Light work" entails the ability to lift and carry up to ten pounds frequently and twenty pounds occasionally. 20 C.F.R. Sec. 404.1567(b) (1989). It also requires "a good deal of walking or standing." Id.

A June 1985 assessment by Dr. Hernandez, a physician who was treating Curry, concluded that Curry had had a "benign" recovery from her March 1985 surgery. Dr. Hernandez indicated that " [a]t this point, I do not feel that the patient is totally permanently disabled." Tr. 190. Such an opinion of a treating physician is entitled to substantial weight. See, e.g., Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984).

In a July 1985 treadmill test performed by Curry and administered by Dr. Mondragon (Curry's treating physician at the time), Curry was able to perform up to seven METS. This test result is consistent with a "functional class I heart," as that term is defined by the American Heart Association. Such a result contrasts with Curry's pre-surgery test results, which were consistent with only a "functional class III heart."

Tests performed in August 1985 confirmed the presence of a functioning graft bypassing the occluded artery. Curry was subsequently advised by Dr. Mondragon, on a number of occasions, to increase her daily activity. See, e.g., Tr. 33-35, 253.¹ 

The ALJ also considered Curry's testimony about her daily activities. Curry indicated that she was able to take care of her personal needs, prepare easy meals, do light housework, and shop for some groceries. An ability to perform such activities may be seen as inconsistent with the presence of a condition which would preclude all work activity. See Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989).

We conclude that the aforementioned and other evidence in the record was "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion" that Curry was capable of performing light work. Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation omitted) (defining substantial evidence).² 

B

We must next consider whether the Secretary committed reversible error in his findings. We conclude that he did not.

The ALJ found that "claimant is a 50 year old woman who obtained a G.E.D." Tr. 15. Even if this finding was error (for Curry testified that she was 53 years old and was unclear as to whether she had a G.E.D.), the error was harmless. Curry is literate and able to communicate in English, so the finding as to her having a G.E.D. is immaterial. Similarly, whether Curry is 50 or 53 years old, she nonetheless falls into the Social Security category of "closely approaching advanced age." 20 C.F.R. Sec. 404.1563(c) (1989). The harmless-error rule therefore applies. See Booz, 734 F.2d at 1380-81.

As to the ALJ's finding that Curry has "no nonexertional limitations" that would prevent her from performing light work, Tr. 15, such finding was not error. Curry contends that " [h]er right eye is almost blind," Appellant's Brief at 20, but there was no medical evidence of any limitations due to eyesight or evidence that the alleged limitations had existed or would continue to exist for a continuous period of at least twelve months.

In conclusion, we note that this is a close case but, as an appellate court, we are not the factfinder. We must uphold the Secretary's decision because it was supported by substantial evidence.

AFFIRMED.