FILED
NOT FOR PUBLICATION JUL 13 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO UR T OF AP PE A LS
FOR THE NINTH CIRCUIT
LINDA TAYLOR, No. 08-15680
Plaintiff - Appellant, D.C. No. 1:06-CV-00957-SMS
v.
MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Sandra M. Snyder, Magistrate Judge, Presiding
Argued and Submitted April 16, 2010
San Francisco, California
Before: SCHROEDER and RAWLINSON, Circuit Judges, and COLLINS, District
Judge.**
Appellant Linda Taylor ('Taylor') appeals the district court's summary
judgment in favor of the Commissioner of Social Security ('Commissioner'). The
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
district court affirmed the decision of the Administrative Law Judge ('ALJ')
denying Taylor Disabled Widow's Insurance benefits and Supplemental Security
Income benefits under Titles II and ÈVI of the Social Security Act. The ALJ
concluded, on the basis of step five in the five-step sequential analysis in 20 C.F.R.
y404.1520(a)-(g), that Taylor was not 'disabled' within the meaning of the Act, 42
U.S.C. y 1382c(3), because she retained 'the capacity for worµ that exists in
significant numbers in the regional economy.'
Taylor contends on appeal that the ALJ erred by rejecting the opinion of her
evaluating psychologist. We have jurisdiction under 28 U.S.C. y 1291. We review
de novo the district court's decision affirming the ALJ, and we reverse and remand
for an award of benefits.
The ALJ disregarded the opinion of Dr. Leslie Lessenger-- who conducted a
consultative psychological examination of Taylor-- and instead relied on the
contradictory opinions of non-treating, non-examining physicians Dr. Glenn Iµawa
and Dr. Evangeline Murillo. To disregard the uncontradicted opinion of an
examining physician or treating physician, an ALJ must provide clear and
convincing reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). If
contradicted by another doctor, as here, an examining or a treating physician's
2
conclusions may be rejected only for specific and legitimate reasons supported by
substantial evidence in the record. Id. at 830-31.
The ALJ failed to offer 'specific and legitimate reasons' for crediting Drs.
Iµawa and Murillo, non-treating, non-examining doctors, over Dr. Lessenger, an
examining doctor. Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995). Dr.
Lessenger opined that Taylor had the following non-exertional limitations- her
concentration was negatively affected by her emotional distress and physical
condition; she was unliµely to function in a worµ situation where demands were
made upon her; she would not do well interacting with others; and she was limited
in her ability to deal with changes in a routine worµ setting due to her emotional
instability. Drs. Iµawa and Murillo, upon review of Taylor's medical file,
concluded that Taylor-was capable of relating to peers and supervisors, but should
avoid the general public; was capable of adapting to worµ-liµe settings and routine
changes in the worµ place; and was capable of maintaining attention,
concentration, persistence, and pace. The ALJ concluded Taylor had a mental
residual functional capacity that closely reflected the opinions expressed in Drs.
Iµawa's and Murillo's assessment. However, the ALJ's conclusions differed from
the opinion expressed by Dr. Lessenger and the ALJ offered no reasons why Dr.
Lessenger's opinion was not credited. We conclude that the ALJ erred by
3
according greater weight to the opinions of non-examining, non-treating
physicians, than to the opinion of Taylor's examining physician without providing
'specific' and 'legitimate' reasons supported by 'substantial evidence in the
record' for doing so. See Lester, 81 F.3d at 830-31. As such, we credit Dr.
Lessenger's opinion 'as a matter of law.' Id. at 834.
'The decision whether to remand a case for additional evidence or simply to
award benefits is within the discretion of the court.' Reddicµ v. Chater, 157 F.3d
715, 728 (9th Cir. 1998). 'Where the record is complete, however, we award
benefits to the claimant.' Ramirez v. Shalala, 8 F.3d 1449, 1455 (9th Cir. 1993).
We conclude that remand for an award of benefits is appropriate because, once Dr.
Lessenger's opinion is credited, 'there are no outstanding issues that must be
resolved before a determination of disability can be made.' Benecµe v. Barnhart,
379 F.3d 587, 593 (9th Cir. 2004). Had the ALJ properly credited Dr. Lessenger's
opinion, Taylor would have been entitled to benefits as a matter of law. The
vocational expert testified that a person of Taylor's age, education, and worµ
experience, in addition to the non-exertional limitations outlined by Dr. Lessenger,
would not be able to perform other worµ in the national economy.
4
Accordingly, we reverse the judgment of the district court and remand with
instructions to remand the case to the ALJ for an award of benefits.***
REVERSED and REMANDED.
*** Due to our disposition in this case, we need not reach Taylor's
alternative argument that the ALJ erred in assessing Taylor's physical residual
functional capacity.
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FILED
Taylor v. Astrue, Case No. 08-15680 JUL 13 2010
Rawlinson, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S . CO UR T OF AP PE A LS
I concur in the result.