                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAY 19 2011

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

SANDRA K. GUNDY,                                 No. 10-35306

              Plaintiff - Appellant,             D.C. No 3:09-cv-05111-KLS

  v.
                                                 MEMORANDUM*
MICHAEL J. ASTRUE,

              Defendant - Appellee.


                  Appeal from the United States District Court
                     for the Western District of Washington
                 Karen L. Strombom, Magistrate Judge, Presiding

                       Argued and Submitted April 11, 2011
                               Seattle, Washington

Before:       KLEINFELD, TASHIMA, and SILVERMAN, Circuit Judges.

       Sandra Gundy appeals the final decision of the Commissioner of Social

Security denying her application for disability insurance benefits under the Social

Security Act. We have jurisdiction under 28 U.S.C. §1291. We reverse and

remand for further proceedings.



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Cir. R. 36-3.
      1.     The ALJ improperly rejected the opinions of Gundy’s treating

physicians, who found that Gundy’s physical and mental limitations impaired her

ability to work. To reject the opinion of a treating doctor, the ALJ must present

specific and legitimate reasons based on substantial evidence in the record. Turner

v. Comm’r of Soc. Sec., 613 F.3d 1217, 1222 (9th Cir. 2010). Here, the ALJ erred

in rejecting Dr. Agunbiada’s assessment of Gundy’s ability to work because he

concluded that (1) the rating was based on a one-time examination; (2) Dr.

Agunbiada’s opinion was not adequately supported by her clinical findings, and (3)

Dr Agunbiada’s opinion was contradicted by that of examining physician Dr.

Quint, a urologist. The first reason is contradicted by the record; Dr. Agunbiada

was Gundy’s treating family physician and worked at the clinic that Gundy has

used for her primary care since the 1990s. The second reason could only be

reached by a crabbed reading of the record, which includes at least two

assessments by Dr. Agunbiada over a period of more than a year. The third reason

is not supported by substantial evidence in the record. The ALJ’s explanation that

Dr. Quint’s assessment is consistent with an “overall” record of improvement is

belied by the assessments of treating physicians over a period of several years, all

of whom found that Gundy variously suffered from moderate, marked, or severe

limitations in her daily functioning.


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      2.     Similarly, the ALJ improperly rejected the opinion of examining

family physician Dr. Grayson by concluding that her findings were contradicted by

Dr. Britz, a neurosurgeon. The record reveals, however, that Dr. Britz opined on

Gundy’s ability to return to pre-operative functioning after a follow-up surgery to

prevent recanalization of her brain aneurysm. By contrast, Dr. Grayson provided

an overall assessment of Gundy’s physical limitations, including complicating

factors like Gundy’s chronic obstructive pulmonary disease. Dr. Britz’s

assessment, therefore, neither contradicts, nor constitutes substantial evidence for

rejecting, Dr. Grayson’s assessment. See Turner, 613 F.3d at 1222.

      3.     The ALJ also uniformly rejected the opinions of Dr. Brose and Dr.

Eather, psychologists who examined Gundy at least three times over a period of

two years, stating that they were unsupported by clinical findings. The ALJ

instead relied on a records review that occurred before these mental health

assessments. This was error. The record indicates that both Dr. Brose and Dr.

Eather based their assessments on full examinations of Gundy. The records

review, undertaken without the benefit of the assessments of these examining

physicians, does not constitute substantial evidence for rejecting the later

assessments of the examining psychologists. The ALJ thus failed to present




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specific and legitimate reasons supported by substantial evidence for rejecting the

opinions of Dr. Brose and Dr. Eather.

      4.     Finally, where, as here, there is no evidence that a claimant is

malingering, an ALJ’s determination that the claimant is not credible must be

based on clear and convincing reasons. Valentine v. Comm’r of Soc. Sec. Admin.,

574 F.3d 685, 693 (9th Cir. 2009); Parra v. Astrue, 481 F.3d 742, 750 (9th Cir.

2007); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). The ALJ must specify

what testimony is not credible and what evidence undermines it. Parra, 481 F.3d

at 750. Here, to the extent the ALJ’s determination that Gundy was not credible

was based on the rejection of the physician and psychologist opinions that

supported her testimony, the credibility determination was in error.

      5.     As a consequence of these errors, the ALJ erred in his determination

of Gundy’s residual functional capacity and in finding that Gundy did not suffer

from significant non-exertional limitations. Consequently, we reverse the district

court’s judgment with instructions that it remand to the agency for the

determination of Gundy’s residual functional capacity and, if necessary, for a re-

evaluation of Gundy’s ability to engage in other substantial gainful activity at step

five of the sequential evaluation process in light of this disposition.

      REVERSED and REMANDED.


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