concurring:

Although benefits may be improperly awarded, I am compelled to concur in the result. The AU failed to discharge his obligation to explain his decision.

The treating physician concluded, among other things, that Boyes was not able to work for at least a twelve month period. Whether to award benefits is not the sole province of the treating physician. Whether benefits will be awarded is a legal decision to be made initially by the agency. The AU may then reject the agency finding, based upon all of the evidence, including the treating physician’s opinion.

To disregard the treating physician’s un-contradicted opinion of disability, the AU must point to clear and convincing reasons to support his contrary conclusion. Magellanes v. Bowen, 881 F.2d 747, 751 (9th Cir.1989). If the treating physician’s opinion is contested by opinions of other testifying doctors a lower standard applies. The ALJ *230 may disregard it upon a showing of specific, legitimate reasons based on evidence in the record. Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983). In either case, the AU is precluded from disregarding the treating physician’s opinion as “not supported by the weight of the substantial evidence.” Specific reference to the record is required.

In theory, the treating physician is most familiar with the condition and capabilities of the applicant. Policy interests require that the AU make a clear statement as to why that advantage should not be recognized.

Here the Secretary relied upon Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir.1985), where we held that a court shall not set aside a denial of benefits unless “the Secretary’s findings are based on legal error or are not supported by substantial evidence in the record as a whole.” We do not retreat from that position but the AU must recognize both rules in his review, not just the general rule of Taylor .

I would prefer to search the record for support of the AU’s finding. The record reflects Dr. Singer’s opinion that Boyes suffered from only a moderate depression and that the bulk of his difficulties were a result of a pre-existing personality disorder. Dr. Heim testified that Boyes could understand and follow instructions and relate to fellow workers. That Dr. Heim also concluded that Boyes might have conflicts with his superiors does not make him disabled. The record also includes Boyes’ statement to one of the doctors that he was “flatly” not interested in working. That statement may have some bearing on Boyes’ credibility. It also tends to support the testimony of Drs. Singer and Heim. However, I must agree with my colleagues that it is the trier of fact, not the appellate court that determines the weight to be given to the evidence. The failure of the trier of fact to articulate the basis for his findings with sufficient clarity causes me to concur with the majority decision.