                                                                            FILED
                            NOT FOR PUBLICATION                              NOV 29 2011

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




                            FOR THE NINTH CIRCUIT



JENNIFER L. CHRISTOPHERSON,                      No. 10-16928

              Plaintiff - Appellant,             D.C. No. 2:09-cv-01005-MHM

  v.
                                                 MEMORANDUM *
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,

              Defendant - Appellee.



                   Appeal from the United States District Court
                            for the District of Arizona
                   Mary H. MURGUIA, District Judge, Presiding

                     Argued and Submitted November 18, 2011
                             San Francisco, California

Before: McKEOWN and M. SMITH, Circuit Judges, and BREWSTER, Senior
District Judge.**

       Jennifer Christopherson appeals the district court’s judgment in favor of the

Commissioner of the Social Security Administration, and his denial of



        *
              This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **    The Honorable Rudi M. Brewster, Senior District Judge for the United
States District Court for Southern California, sitting by designation.
Christopherson’s application for disability insurance benefits under Title II of the

Social Security Act by adopting the decision of the Administrative Law Judge

(ALJ). Christopherson contends that the ALJ erred by adopting the opinion of

one-time state agency examiner, Dr. Geary, over the assessments of three treating

psychiatrists: Dr. Cowley, Dr. Sidhu, and Nurse Practitioner Pinson.1 As the facts

and procedural history are familiar to the parties, we do not recite them here except

as necessary to explain our disposition. We have jurisdiction under 28 U.S.C. §

1291. We reverse and remand.

      First, the district court erred in affirming the ALJ’s rejection of the

testimony of three treating physicians, Dr. Cowley, Dr. Sidhu, and Nurse

Practitioner Pinson, in favor of examining physician, Dr. Geary’s testimony.

Generally, a treating physician’s opinion carries more weight than an examining

physician’s. Lester v. Chater, 81 F.3d 821, 830 (9th Cir.1995); see 20 C.F.R. §

404.1527(d). If the treating physician’s testimony is controverted, the ALJ must

provide “specific, legitimate reasons . . . supported by substantial evidence” to

properly reject the testimony. Orn v. Astrue, 495 F.3d 625, 632-34 (9th Cir. 2007).




      1
       All health care professionals can give “medical opinions.” Lester, 81 F.3d
at 830 n.7. For simplicity, we refer to Christopherson’s treating medical team as
“psychiatrists” or “physicians.”
      The ALJ identified the following four reasons for rejecting the testimony of

Dr. Cowley, Dr. Sidhu, and Nurse Practitioner Pinson in favor of Dr. Geary’s

testimony: “[1] the nature and/or extent of the consultative examining physician’s

relationship to the claimant; [2] supportability with medical signs and laboratory

findings; [3] consistency with the record; and [4] area of specialization.” Because

the testimony of the three treating physicians is controverted by the testimony of

Dr. Geary, we evaluate the ALJ’s justification according to the “specific and

legitimate reasons” standard.

      The ALJ’s first reason for rejecting the treating physicians’ testimony given

the respective physicians’ “relationship[s] to the claimant” is unavailing. In

Holohan v. Massanari, 246 F.3d 1195, 1207 (9th Cir. 2001), this court rejected the

ALJ’s disregard of a treating physician who had just recently assumed treatment of

the claimant because the assessment was based, in part, on knowledge of the

claimant’s medical history. Id. Such is the case here, as all three treating

psychiatrists based their evaluations on knowledge of the claimant’s background

and medical history.

      The ALJ’s second reason that there were no “medical signs and laboratory

findings” relative to Christopherson’s mental impairments is also unpersuasive

because it ignores clear facts established in the record. The initial intake


                                           3
assessments of Dr. Geary and Nurse Practitioner Pinson were based upon extensive

background information obtained during the initial evaluation. Moreover, the

Pinson/Geary report contained far more than “minimal objective psychiatric signs”

of disability, including express clinical findings of auditory hallucinations, poor

concentration, and poor insight.

      As to the ALJ’s third reason, the ALJ failed to specify where in the record

the alleged inconsistencies with the treating physicians’ testimony could be found.

Instead, the ALJ relied on the Commissioner and merely pointed to different

isolated points in time in which Christopherson was found to be oriented and in an

euthymic mood. Such findings fail to satisfy the standard to prove inconsistencies

in the record—conflicting contemporaneous medical tests, diagnoses, and

testimony. Orn, 495 F.3d at 634. “Consistency does not require similarity in

findings over time despite a claimant’s evolving mental status.” See id.

Consistency must be evaluated in the context of “the record as a whole.” Id.

      With regard to the ALJ’s fourth reason, the district court already found that

the ALJ erred in weighing the specialization of Nurse Practitioner Pinson (as a

nurse practitioner) against her as a treating physician. However the district court

found this error harmless in the face of the other evidence which it believed

supported the rejection of the treating physicians’ testimony. Accordingly,


                                           4
because the reasons cited by the ALJ were neither specific nor legitimate in light of

the record, the ALJ erred in rejecting the testimony of the three treating physicians

in favor of the examining physician.

      The ALJ also erred in rejecting Christopherson’s symptom testimony. “The

ALJ can reject the claimant's testimony about the severity of her symptoms only by

offering specific, clear and convincing reasons for doing so.” Lingenfelter v.

Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). The ALJ cited the two following

specific reasons for rejecting Christopherson’s symptom testimony: (1) his belief

that “claimant’s medical records show that treating physician(s) responded with

limited and conservative treatment;” and (2) his belief that “objective medical

evidence fails to fully support the claimant.” When viewed in its entirety, as

required under Orn, the record does not bely Christopherson’s testimony and her

sporadic improvements while on Haldol do not undercut her credibility or the

severity of her alleged disability. See Orn, 495 F.3d at 634. Accordingly, because

both of the ALJ’s reasons are flawed, the ALJ did not provide clear and convincing

reasons to reject Christopherson’s testimony.

      REVERSED AND REMANDED.




                                          5
