                                                                           FILED
                             NOT FOR PUBLICATION                             JUL 13 2010

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




                             FOR THE NINTH CIRCUIT



LINDA TAYLOR,                                    No. 08-15680

               Plaintiff - Appellant,            D.C. No. 1:06-CV-00957-SMS

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

               Defendant - Appellee.


                     Appeal from the United States District Court
                         for the Eastern District of California
                    Sandra M. Snyder, Magistrate Judge, Presiding

                         Argued and Submitted April 16, 2010
                              San Francisco, California

Before: SCHROEDER and RAWLINSON, Circuit Judges, and COLLINS, District

Judge.**

       Appellant Linda Taylor ('Taylor') appeals the district court's summary

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

           *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
district court affirmed the decision of the Administrative Law Judge ('ALJ')

denying Taylor Disabled Widow's Insurance benefits and Supplemental Security

Income benefits under Titles II and ÈVI of the Social Security Act. The ALJ

concluded, on the basis of step five in the five-step sequential analysis in 20 C.F.R.

y404.1520(a)-(g), that Taylor was not 'disabled' within the meaning of the Act, 42

U.S.C. y 1382c(3), because she retained 'the capacity for worµ that exists in

significant numbers in the regional economy.'

      Taylor contends on appeal that the ALJ erred by rejecting the opinion of her

evaluating psychologist. We have jurisdiction under 28 U.S.C. y 1291. We review

de novo the district court's decision affirming the ALJ, and we reverse and remand

for an award of benefits.

      The ALJ disregarded the opinion of Dr. Leslie Lessenger-- who conducted a

consultative psychological examination of Taylor-- and instead relied on the

contradictory opinions of non-treating, non-examining physicians Dr. Glenn Iµawa

and Dr. Evangeline Murillo. To disregard the uncontradicted opinion of an

examining physician or treating physician, an ALJ must provide clear and

convincing reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). If

contradicted by another doctor, as here, an examining or a treating physician's




                                          2
conclusions may be rejected only for specific and legitimate reasons supported by

substantial evidence in the record. Id. at 830-31.

      The ALJ failed to offer 'specific and legitimate reasons' for crediting Drs.

Iµawa and Murillo, non-treating, non-examining doctors, over Dr. Lessenger, an

examining doctor. Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995). Dr.

Lessenger opined that Taylor had the following non-exertional limitations- her

concentration was negatively affected by her emotional distress and physical

condition; she was unliµely to function in a worµ situation where demands were

made upon her; she would not do well interacting with others; and she was limited

in her ability to deal with changes in a routine worµ setting due to her emotional

instability. Drs. Iµawa and Murillo, upon review of Taylor's medical file,

concluded that Taylor-was capable of relating to peers and supervisors, but should

avoid the general public; was capable of adapting to worµ-liµe settings and routine

changes in the worµ place; and was capable of maintaining attention,

concentration, persistence, and pace. The ALJ concluded Taylor had a mental

residual functional capacity that closely reflected the opinions expressed in Drs.

Iµawa's and Murillo's assessment. However, the ALJ's conclusions differed from

the opinion expressed by Dr. Lessenger and the ALJ offered no reasons why Dr.

Lessenger's opinion was not credited. We conclude that the ALJ erred by


                                          3
according greater weight to the opinions of non-examining, non-treating

physicians, than to the opinion of Taylor's examining physician without providing

'specific' and 'legitimate' reasons supported by 'substantial evidence in the

record' for doing so. See Lester, 81 F.3d at 830-31. As such, we credit Dr.

Lessenger's opinion 'as a matter of law.' Id. at 834.

      'The decision whether to remand a case for additional evidence or simply to

award benefits is within the discretion of the court.' Reddicµ v. Chater, 157 F.3d

715, 728 (9th Cir. 1998). 'Where the record is complete, however, we award

benefits to the claimant.' Ramirez v. Shalala, 8 F.3d 1449, 1455 (9th Cir. 1993).

We conclude that remand for an award of benefits is appropriate because, once Dr.

Lessenger's opinion is credited, 'there are no outstanding issues that must be

resolved before a determination of disability can be made.' Benecµe v. Barnhart,

379 F.3d 587, 593 (9th Cir. 2004). Had the ALJ properly credited Dr. Lessenger's

opinion, Taylor would have been entitled to benefits as a matter of law. The

vocational expert testified that a person of Taylor's age, education, and worµ

experience, in addition to the non-exertional limitations outlined by Dr. Lessenger,

would not be able to perform other worµ in the national economy.




                                          4
Accordingly, we reverse the judgment of the district court and remand with

instructions to remand the case to the ALJ for an award of benefits.***

      REVERSED and REMANDED.




        ***   Due to our disposition in this case, we need not reach Taylor's
alternative argument that the ALJ erred in assessing Taylor's physical residual
functional capacity.

                                          5
                                           FILED
Taylor v. Astrue, Case No. 08-15680          JUL 13 2010
Rawlinson, Circuit Judge, concurring:   MOLLY C. DWYER, CLERK
                                         U.S . CO UR T OF AP PE A LS

     I concur in the result.
