                                                                           FILED
                            NOT FOR PUBLICATION                              JUL 19 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



RALPH N. DAVIS,                                  No. 10-35703

              Plaintiff - Appellant,             D.C. No. 2:09-cv-00191-CI

  v.
                                                 MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
Social Security,

              Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Eastern District of Washington
                  Cynthia Imbrogno, Magistrate Judge, Presiding

                        Argued and Submitted May 6, 2011
                               Seattle, Washington

Before: SCHROEDER, McKEOWN, and CALLAHAN, Circuit Judges.

       Appellant Ralph N. Davis ('Davis') appeals the district court's summary

judgment in favor of the Commissioner of Social Security ('Commissioner'). The

Administrative Law Judge ('ALJ') denied Davis's Disability Insurance benefits

and Supplemental Security Income benefits under Titles II and ÈVI of the Social


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Security Act. The ALJ concluded, on the basis of step four in the five-step

sequential analysis in 20 C.F.R. y 404.1520(a)-(g), that Davis was not 'disabled'

within the meaning of the Act, 42 U.S.C. y 1382c(3), because he could still

perform his past relevant worµ as a cabinet assembler. We have jurisdiction under

28 U.S.C. y 1291. We review de novo the district court's decision, and we reverse

and remand for further proceedings.

      Davis contends that the ALJ erred by rejecting the opinion of Dr. Joseph

Cools, the impartial medical expert selected by the ALJ to testify at the disability

hearing, without providing legally adequate reasons for doing so. See 20 C.F.R.

y 404.1527(f)(2)(iii) (providing standards for the ALJ's consideration of expert

testimony). We agree. The ALJ's reason for rejecting Dr. Cools's testimony was

that he 'apparently accepted the exaggerated symptoms without question despite

repeated references in the record to symptom magnification and malingering.'

      Dr. Cools, however, did not blindly accept Davis's symptoms. Rather, he

specifically noted the extensive evidence of malingering and exaggeration and

discussed how they complicate Davis's diagnosis. Significantly, Dr. Cools noted

that he relied on evidence in the record, which included clinical notes prepared by

Dr. Tom Arnold after his twelve sessions with Davis, Dr. Robert Baxley's




                                           2
September 2004 Psychiatric Evaluation, and Dr. Pamela Ridgeway's March 2007

Psychological Diagnostic Evaluation.

      Additionally, Dr. Cools's findings are largely consistent with the opinion of

Dr. Arnold, Davis's treating psychologist. The two opinions differed in their

classification of the severity of Davis's limitations, but even Dr. Arnold's more

conservative 2007 evaluation still found a number of mild and moderate functional

limitations. As the treating psychologist, Dr. Arnold's opinion was due

'controlling weight.' See 20 C.F.R. y 404.1527(d)(2); see also Lester v. Chater, 81

F.3d 821, 830 (9th Cir. 1995) (holding that such testimony can be rejected only if

the ALJ provides 'specific and legitimate reasons supported by substantial

evidence in the record.'). Since Dr. Cools's testimony was supported by evidence

in the record and did not improperly ignore the evidence of malingering, we

conclude that the ALJ failed to provide adequate reasons for rejecting the opinion

of Dr. Cools. See 20 C.F.R. y 404.1527(f)(2)(iii). Cool's opinion was that

malingering was but a symptom of an underlying disabling psychological

condition, and that Davis was unable to worµ on the basis of the underlying

disability, not on account of malingering, as the dissent incorrectly assumes.

      With respect to the testimony of the Vocation Expert ('VE'), the

hypothetical posed by the ALJ did not taµe into account all of the claimant's


                                          3
limitations. Although claimant's attorney attempted to asµ a more complete

hypothetical, Davis' counsel at oral argument acµnowledged that additional

testimony by the VE would be necessary on remand. We therefore reverse and

remand to the district court with instructions to reverse the administrative decision

and remand for such additional proceedings.

      The district court concluded that Davis is ineligible for Title II disability

insurance and can only qualify for Title ÈVI benefits. Davis has not appealed that

conclusion, accordingly, any challenge has been waived.

      REVERSED and REMANDED for further proceedings consistent with this

decision.

      Plaintiff is awarded costs on appeal.




                                           4
                                                                             FILED
Davis v. Astrue, No. 10-35703                                                  JUL 19 2011

                                                                          MOLLY C. DWYER, CLERK
Callahan, Circuit Judge, dissenting                                        U.S . CO U RT OF AP PE A LS




      I do not believe malingering is a compensable disability. I dissent.1

      In my view, substantial evidence supports the Administrative Law Judge's

('ALJ') conclusion that Davis could perform his past worµ as a cabinet assembler.

The ALJ found the testimony of Dr. Cools, a non-treating, non-examining medical

expert, to be unsupported by evidence in the record. Because the testimony given

by Dr. Cools was not supported by any findings, and conflicted with the opinions

of other physicians, including his treating physician, the ALJ was not required to

accept his testimony, and was certainly not required to give his testimony more

weight than the treating physician's opinion. Bray v. Comm'r of Soc. Sec. Admin.,

554 F.3d 1219, 1228 (9th Cir. 2009).

      The ALJ asµed the Vocational Expert ('VE') a hypothetical based on the

limitations he found credible and supported by the objective evidence in the record.

The VE stated that a person with those limitations would be able to perform

Davis's past worµ as a cabinet assembler. Substantial evidence supports the ALJ's




      1
             I concur in the portion of the decision that finds Davis is ineligible for
benefits under Title II of the Social Security Act and that he has waived any
challenge to that finding.
decision as to Davis's limitations. Because we do not review the ALJ's decision

de novo, his judgment should not be replaced with ours. See Flaten v. Sec'y of

Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). I would affirm the

district court's decision upholding the ALJ. Given my dissent, I would also not

award costs to the plaintiff on appeal.
