Alexander Whalen v. Michael Astrue , 381 F. App'x 738 ( 2010 )

MEMORANDUM ^**

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-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 “marked 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 shows also Whalen engaged in volunteer work sporadically and that his volunteer work was not similar to actual employment. .

A vocational expert testified that if Whalen had “marked 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.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.