                                                                           FILED
                             NOT FOR PUBLICATION                            NOV 30 2010

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




                             FOR THE NINTH CIRCUIT



STEPHANIE ARANDA, the beneficiary                No. 09-35774
of the claim of Linda Clarµ, deceased;
LINDA CLARK,                                     DC No. 3:08-cv-0340 MA

               Plaintiffs - Appellants,
                                                 MEMORANDUM *
  v.

COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,

               Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Oregon
                    Malcolm F. Marsh, District Judge, Presiding

                             Submitted October 7, 2010**
                                 Portland, Oregon

Before:        TASHIMA, PAEZ, and CLIFTON, Circuit Judges.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
      Stephanie Aranda, daughter of Linda Clarµ, appeals the final decision of the

Commissioner of Social Security denying Clarµ's application for disability

insurance benefits under Title II of the Social Security Act. We have jurisdiction

under 28 U.S.C. y1291, and we reverse and remand for the calculation and

payment of benefits.

      Aranda contends that the administrative law judge ('ALJ') improperly

rejected the opinions of Clarµ's treating psychiatrist, Dr. Sucµow, in favor of the

opinion of a non-treating psychologist, Dr. Stoltzfus. We agree. If a treating

physician's opinion is contradicted by other substantial evidence, such as the

opinion of an examining physician, it may be rejected only for specific and

legitimate reasons supported by substantial evidence. Lester v. Chater, 81 F.3d

821, 830 (9th Cir. 1995). Here, the ALJ relied heavily on Dr. Stoltzfus' summary

of Clarµ's Minnesota Multi Phasic Inventory ('MMPI') results, but failed to

account for the fact that the MMPI was administered to Clarµ four and one-half

years after her date last insured. While the time lapse does not render Dr.

Stoltzfus' findings irrelevant, it detracts from their weight in a manner that the ALJ

did not acµnowledge. See Vincent v. Hecµler, 739 F.2d 1393, 1395 (9th Cir. 1984)

('After-the-fact psychiatric diagnoses are notoriously unreliable.'). Moreover, the

ALJ's assessment of Dr. Sucµow's opinion was inadequate. When a treating


                                          -2-
physician's opinion is contradicted by other evidence, the ALJ must assess its

persuasiveness in light of specified factors, including the 'length of the treatment

relationship and the frequency of examination;' the 'nature and extent of the

treatment relationship;' and the treating opinion's consistency 'with the record as a

whole.' Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (citing 20 C.F.R. y

404.1527(d)(2)(i)-(ii)). Here, the ALJ failed to apply these factors, which heavily

favor Dr. Sucµow's opinion. Dr. Sucµow treated Clarµ for six years. His

assessment of Clarµ's impairments was based on extensive observation,

evaluation, and diagnosis. Dr. Stotlzfus, in contrast, met with Clarµ only once,

four and one-half years after the relevant time period. Furthermore, Dr. Sucµow's

assessment of Clarµ's disabling symptoms comported with the findings of two

other psychiatrists who diagnosed Clarµ with severe depression and found no

evidence of malingering. Thus, the nature and duration of Dr. Sucµow's treatment

lends greater weight to his opinion, and the ALJ erred by assigning Dr. Sucµow's

opinion 'little weight' without considering these points. See id.




                                          -3-
         For the foregoing reasons, we conclude that the ALJ's reasons for rejecting

Dr. Sucµow's opinion were not specific and legitimate.1 We also conclude that

remand for calculation of benefits is the appropriate remedy because the vocational

expert testified that a person who suffered the impairments described in Dr.

Sucµow's opinion would have been completely disabled. See Vasquez v. Astrue,

572 F.3d 586, 600 (9th Cir. 2009); Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir.

1996).

         We therefore reverse the judgment of the district court and remand with

instructions that the district court reverse the Commissioner's denial of benefits

and remand to the Commissioner for the calculation and payment of benefits based

on an onset date of October 31, 1999.2

         REVERSED and REMANDED .


         1
              Although the dissent is critical of the majority's lacµ of concern over
'the fact that Dr. Sucµow did not begin treating Clarµ until July 1999, more than
four years after her initial alleged onset date of March 31, 1995,' the record is clear
that Clarµ's actual onset date is October 31, 1999, see footnote 2, infra, which is
three months after Dr. Sucµow began treating Clarµ.
         2
              Because the ALJ concluded that Clarµ was not disabled during the
relevant period, he made no finding of an onset date. That date, however, is not
controverted. Although Aranda originally alleged an onset date of March 31,
1995, she conceded before the ALJ, and continues to concede, that the correct date
of onset is October 31, 1999. We accept this later date of onset for the calculation
of disability benefits because it is consistent with the record of medical and worµ
evidence.

                                           -4-
                                                                             FILED
No. 09-35774, Aranda v. Comm'r Soc. Sec. Admin.                               NOV 30 2010

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




      I respectfully dissent. The ALJ gave specific and legitimate reasons,

supported by substantial evidence, to discredit the opinion of Clarµ's treating

psychiatrist, Dr. Sucµow, in favor of the opinion of Dr. Stoltzfus. See Lester v.

Chater, 81 F.3d 821, 830 (9th Cir. 1995). The ALJ incorporated by reference his

January 30, 2004 decision denying Clarµ benefits. In that decision, the ALJ offered

a host of specific and legitimate reasons to discredit Dr. Sucµow's opinion. Those

reasons were supported by the record and are not discussed by the majority.

      The majority expresses concern that the ALJ failed to acµnowledge that Dr.

Stoltzfus examined Clarµ four-and-a-half years after her date last insured. The

majority does not extend similar concern, however, to the fact that Dr. Sucµow did

not begin treating Clarµ until July 1999, more than four years after her initial

alleged onset date of March 31, 1995, such that the claimant's evidence was

subject to the same criticism. In that context, the failure of the ALJ to discuss the

time lapse was not so surprising. More importantly, the claimant does not contend

that Clarµ's condition improved prior to the examination by Dr. Stoltzfus, so the

passage of time is not a persuasive reason to disregard his evaluation.

      I would affirm the decision denying benefits.
