                                                                           FILED
                             NOT FOR PUBLICATION                            DEC 13 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



PENG SEE,                                        No. 11-16194

               Plaintiff - Appellant,            D.C. No. 1:09-cv-01751-GSA

  v.
                                                 MEMORANDUM *
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,

               Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    Gary S. Austin, Magistrate Judge, Presiding

                             Submitted August 24, 2012 **

Before:        HUG, FARRIS, and LEAVY, Circuit Judges.

       Peng See (“See”) appeals the district court’s order affirming the decision of

the administrative law judge (“ALJ”) denying her application for disability

benefits. We review de novo the district court’s order affirming the ALJ’s denial


          *
             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).
of benefits. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). We may

reverse the Commissioner’s decision only if it is not supported by substantial

evidence or is based on legal error. Id. We have jurisdiction under 28 U.S.C. §

1291, and we reverse and remand for further proceedings.1

      See argues that the ALJ improperly rejected the opinion of Dr. Lessenger,

her examining psychologist. An ALJ must provide specific and legitimate reasons

supported by substantial evidence to reject the contradicted opinion of a treating or

examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). The ALJ

failed to do so here.

      The ALJ did not provide adequate reasons for rejecting the opinion of Dr.

Lessenger. The ALJ did not address Dr. Lessenger’s diagnoses of PTSD and

Depressive Disorder NOS, but by not finding that See had a medically

determinable mental impairment, he implicitly and erroneously rejected those

diagnoses without setting forth specific and legitimate reasons for doing so. See

Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996). Moreover, the ALJ’s

finding that Dr. Lessenger could not determine the nature or severity of See’s

impairments because of See’s lack of cooperation and symptom magnification is



      1
         Because the parties are familiar with the facts underlying this appeal, we
do not recount the facts here.

                                          2
not legitimate or supported by substantial evidence because it is based on a

mischaracterization of Dr. Lessenger’s report. See id. at 1465-66. Further, the

ALJ’s statement that Dr. Lessenger did not render an opinion about signs,

symptoms, and limitations based on See’s PTSD and depression is factually

inaccurate and is therefore not a legitimate reason supported by substantial

evidence. See Orn v. Astrue, 495 F.3d 625, 634-35 (9th Cir. 2007). Finally, the

ALJ impermissibly focused on portions of Dr. Lessenger’s report that supported a

finding of nondisability while ignoring those that would support a finding that See

was disabled. See Edlund v. Massanari, 253 F.3d 1152, 1158-59 (9th Cir. 2001).

      We reverse and remand for further proceedings so that the ALJ can fully

consider Dr. Lessenger’s opinion. Upon a proper evaluation of Dr. Lessenger’s

opinion, the ALJ should engage in and document the psychiatric review technique

required by 20 C.F.R. § 416.920a, review all credibility issues, and proceed in the

sequential steps as necessary to evaluate See’s claim. On remand the ALJ is free to

revisit the opinions of See’s treating physician and examining physician to

determine their impact, if any, on the reevaluation of Dr. Lessenger’s opinion.

      REVERSED and REMANDED.




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