FILED

NOT FOR PUBLICATION JUN 04 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

ALEÈANDER WHALEN, No. 09-35711

Plaintiff - Appellant, D.C. No. 3:07-cv-01887-ST

v.

MEMORANDUM *

MICHAEL J. ASTRUE, Commissioner Social Security Administration,

Defendant - Appellee.

Appeal from the United States District Court for the District of Oregon Michael W. Mosman, District Judge, Presiding

Submitted May 7, 2010** Portland, Oregon

Before: KLEINFELD, BEA and IKUTA, Circuit Judges.

Alexander Whalen appeals the district court's order affirming the

Commissioner's decision to deny Whalen social security disability benefits.

Whalen suffers from severe post-traumatic stress disorder ('PTSD') and non-

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). severe coronary artery disease. The Administrative Law Judge ('ALJ') accepted

Whalen suffered PTSD, but found Whalen suffered only 'moderate limitations' as

a result of his condition. The ALJ denied Whalen benefits based on the testimony

of a vocational expert who stated Whalen could find a job if he suffered only

moderate limitations.

The ALJ's finding that Whalen suffered only 'moderate limitations' is not

supported by substantial evidence. The ALJ's finding contradicts the medical

opinion of the nonexamining medical consultant selected by the ALJ, who testified

Whalen suffered from 'marµed limitations' in 'concentration, persistence, or

pace.' The nonexamining medical consultant's opinion was consistent with all the

medical opinion evidence in the record.

The ALJ rejected the nonexamining medical consultant's opinion based on

the ALJ's findings regarding Whalen's past activities, including attending

community college and volunteering as a handyman for elderly members of his

church. The ALJ did not identify any evidence the nonexamining medical

consultant did not consider. However, the ALJ's interpretation of the evidence was

incorrect. Whalen was not attending community college; he had dropped out of

community college before completing a semester or a single class. The record

2 shows also Whalen engaged in volunteer worµ sporadically and that his volunteer

worµ was not similar to actual employment.

A vocational expert testified that if Whalen had 'marµed limitations' in

concentration, persistence, or pace, he would not be able to maintain employment.

The record is therefore fully developed regarding Whalen's residual functional

capacity. We remand for payment of benefits only.

REVERSED AND REMANDED.

3

FILED

Whalen v. Astrue, No. 09-35711 JUN 04 2010 IKUTA, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK

U.S . CO U RT OF AP PE A LS

Examining physician Dr. Finney's report states that Whalen was self-

employed during the period of alleged disability, 'painting house interiors,

carpentry, and installing carpet.' A report by MSW Linda Hallecµ, based on an

interview with Whalen, liµewise states that Whalen was self-employed during the

relevant period. Furthermore, Whalen's wife testified that Whalen engaged in 'a

lot of volunteer worµ' for the church. This statement was corroborated by

Whalen's own testimony. Based on this and other evidence, the ALJ discounted

Dr. Clayton's testimony that Whalen had a marµed limitation in concentration,

persistence, or pace. As a non-examining physician, Dr. Clayton based his

conclusion solely on a paper review of Whalen's medical records.

We must uphold the ALJ's determination when it is based on substantial

evidence, even if we disagree with the ALJ's conclusion. Lingenfelter v. Astrue,

504 F.3d 1028, 1035 (9th Cir. 2007). 'Under this standard, the Commissioner's

findings are upheld if supported by inferences reasonably drawn from the record . .

. .' Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).

Because the ALJ's specific reasons for rejecting Dr. Clayton's assessment were

supported by inferences reasonably drawn from the record, and her decision as a

whole was based on substantial evidence, I would affirm.