FILED
NOT FOR PUBLICATION JUN 04 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
ALEÈANDER WHALEN, No. 09-35711
Plaintiff - Appellant, D.C. No. 3:07-cv-01887-ST
v.
MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner
Social Security Administration,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Submitted May 7, 2010**
Portland, Oregon
Before: KLEINFELD, BEA and IKUTA, Circuit Judges.
Alexander Whalen appeals the district court's order affirming the
Commissioner's decision to deny Whalen social security disability benefits.
Whalen suffers from severe post-traumatic stress disorder ('PTSD') and non-
*
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).
severe coronary artery disease. The Administrative Law Judge ('ALJ') accepted
Whalen suffered PTSD, but found Whalen suffered only 'moderate limitations' as
a result of his condition. The ALJ denied Whalen benefits based on the testimony
of a vocational expert who stated Whalen could find a job if he suffered only
moderate limitations.
The ALJ's finding that Whalen suffered only 'moderate limitations' is not
supported by substantial evidence. The ALJ's finding contradicts the medical
opinion of the nonexamining medical consultant selected by the ALJ, who testified
Whalen suffered from 'marµed limitations' in 'concentration, persistence, or
pace.' The nonexamining medical consultant's opinion was consistent with all the
medical opinion evidence in the record.
The ALJ rejected the nonexamining medical consultant's opinion based on
the ALJ's findings regarding Whalen's past activities, including attending
community college and volunteering as a handyman for elderly members of his
church. The ALJ did not identify any evidence the nonexamining medical
consultant did not consider. However, the ALJ's interpretation of the evidence was
incorrect. Whalen was not attending community college; he had dropped out of
community college before completing a semester or a single class. The record
2
shows also Whalen engaged in volunteer worµ sporadically and that his volunteer
worµ was not similar to actual employment.
A vocational expert testified that if Whalen had 'marµed limitations' in
concentration, persistence, or pace, he would not be able to maintain employment.
The record is therefore fully developed regarding Whalen's residual functional
capacity. We remand for payment of benefits only.
REVERSED AND REMANDED.
3
FILED
Whalen v. Astrue, No. 09-35711 JUN 04 2010
IKUTA, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S . CO U RT OF AP PE A LS
Examining physician Dr. Finney's report states that Whalen was self-
employed during the period of alleged disability, 'painting house interiors,
carpentry, and installing carpet.' A report by MSW Linda Hallecµ, based on an
interview with Whalen, liµewise states that Whalen was self-employed during the
relevant period. Furthermore, Whalen's wife testified that Whalen engaged in 'a
lot of volunteer worµ' for the church. This statement was corroborated by
Whalen's own testimony. Based on this and other evidence, the ALJ discounted
Dr. Clayton's testimony that Whalen had a marµed limitation in concentration,
persistence, or pace. As a non-examining physician, Dr. Clayton based his
conclusion solely on a paper review of Whalen's medical records.
We must uphold the ALJ's determination when it is based on substantial
evidence, even if we disagree with the ALJ's conclusion. Lingenfelter v. Astrue,
504 F.3d 1028, 1035 (9th Cir. 2007). 'Under this standard, the Commissioner's
findings are upheld if supported by inferences reasonably drawn from the record . .
. .' Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
Because the ALJ's specific reasons for rejecting Dr. Clayton's assessment were
supported by inferences reasonably drawn from the record, and her decision as a
whole was based on substantial evidence, I would affirm.