                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 04 2010

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




                            FOR THE NINTH CIRCUIT



MARY BAKEWELL,                                   No. 08-35991

             Plaintiff - Appellant,              D.C. No. 3:07-cv-01295-BR

  v.
                                                 MEMORANDUM *
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,

             Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Oregon
                     Anna J. Brown, District Judge, Presiding

                     Argued and Submitted December 10, 2009
                                Portland, Oregon

Before: FARRIS, D.W. NELSON and BERZON, Circuit Judges.

       Mary Bakewell appeals the district court’s order affirming an Administrative

Law Judge’s determination that Bakewell was not disabled and therefore not

entitled to Social Security disability benefits. We have jurisdiction pursuant to 28

U.S.C. § 1291 and we reverse.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      “We review the district court’s order affirming the ALJ’s denial of social

security benefits de novo, and will disturb the denial of benefits only if the decision

contains legal error or is not supported by substantial evidence.” Tommasetti v.

Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citations omitted).

      At step two of the sequential process for evaluating disability, 20 C.F.R. §

404.1520(a)(4)(ii), the ALJ concluded that Bakewell’s migraines were not a severe

impairment. The ALJ’s conclusion that Bakewell’s migraines remained under

excellent control with medication is not supported by substantial evidence. The

record indicates without contradiction that Bakewell’s migraines incapacitated her

for several days and that her persistent symptoms were not controlled effectively

with medication. Accordingly, there is no substantial evidence supporting the

ALJ’s position that Bakewell’s migraines do not “significantly limit[] [her]

physical or mental ability to do basic work activities,” 20 C.F.R. § 404.1520(c), as

the ALJ’s conclusion was based upon the erroneous factual finding that Bakewell’s

migraines are under control.

      Furthermore, the ALJ did not provide “specific and legitimate reasons that

are supported by substantial evidence in the record,” Lester v. Chater, 81 F.3d 821,

830–31 (9th Cir. 1995), for rejecting the opinion of Bakewell’s examining

physician, Dr. Roberts. The ALJ did not credit Dr. Roberts’s assessment of


                                           2
limitations on Bakewell’s repetitive use of her hand, nor did the ALJ provide any

reason to reject this assessment. Because the ALJ ignored the opinion of Dr.

Roberts entirely, the ALJ erred. See id.

      The ALJ predicated his ruling that Bakewell is not disabled on the erroneous

factual finding regarding Bakewell’s migraines, and he committed legal error by

ignoring the findings of Dr. Roberts. We therefore reverse the order of the district

court and remand with directions to reassess Bakewell’s claim consistent with this

disposition.

      REVERSED AND REMANDED.




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