Pottle

MEMORANDUM ***

John Pottle appeals the district court’s order affirming the Commissioner of Social Security’s final decision, which denied Pottle’s application for supplementary social security income and disability benefits under Title XVI of the Social Security Act. 42 U.S.C. §§ 401-33 , 1381-83L Because the parties are familiar with the facts of this case, we recount them here only as necessary.

On January 12, 2004, an Administrative Law Judge (“ALJ”) determined at *528 step five of the five-step evaluation process that Pottle was not disabled. 20 C.F.R. § 416.920 . That decision became the final decision of the Commissioner. We conclude that the ALJ’s decision was supported by substantial evidence. 42 U.S.C. § 405 (g); Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir.2003).

Two examining physicians presented conflicting opinions regarding Pottle’s capacity for work. The ALJ gave substantial weight to the opinion of Dr. Robinann Cogburn, Ph.D., who concluded that Pottle’s psychological impairments would not prevent him from functioning in an employment setting, and gave little weight to the opinion of Dr. James Bryan, Ph.D., who concluded that long-term employment was not…

dissenting:

Although I agree that the administrative law judge (“ALJ”) did not err in finding that Pottle failed to meet or equal the criteria for Listing 12.05C and did not err in failing to discuss part of Hill’s testimony, I respectfully dissent from the remainder of the disposition.

In my view, the ALJ did not give any “legitimate” reasons, Lester v. Chater, 81 F.3d 821, 831 (9th Cir.1996), for discounting the opinion of Dr. Bryan. The second and third reasons cited by the disposition, maj. dispo. at--Pottle’s exaggeration of his symptoms and the resulting invalidity of formal personality tests — not only fail to support the ALJ’s conclusion, they in fact buttress Dr. Bryan’s diagnosis of a personality disorder.

Dr. Bryan’s report states in no uncertain terms that he was fully aware both that Pottle over-reported his symptoms and that the personality tests were invalid for that reason. Dr. Bryan’s diagnosis of a personality disorder rested on different reasons — the validity of which neither the ALJ nor the disposition challenges. If a doctor runs a multitude of tests, one of which produces invalid results, that doctor still can make a valid diagnosis on the basis of the…