Donald H. Morinskey v. MICHAEL J. ASTRUE, Commissioner Social Security Administration

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Marilyn L. Huff, United States District Judge for the
Southern District of California, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONALD H. MORINSKEY,
Plaintiff - Appellant,
v.
MICHAEL J. ASTRUE, Commissioner
Social Security Administration,
Defendant - Appellee.
No. 10-16122
D.C. No. 1:08-cv-1661-GSA
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Gary S. Austin, Magistrate Judge, Presiding
Argued and Submitted October 14, 2011
San Francisco, California
Before: THOMAS and MURGUIA, Circuit Judges, and HUFF, District Judge. **
Donald H. Morinskey appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of disability benefits. We have
FILED
NOV 15 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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jurisdiction under 28 U.S.C. § 1291. We reverse and remand for payment of
benefits.
“We review the district court’s order affirming the Commissioner’s denial of
benefits de novo to ensure that the Commissioner’s decision was supported by
substantial evidence and a correct application of the law.” Valentine v. Comm’r of
Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (citation, quotation marks, and
alterations omitted).
The Administrative Law Judge (“ALJ”) did not “make findings setting forth
specific, legitimate reasons” for rejecting Dr. McNairn’s opinion that Morinskey’s
abilities to maintain regular attendance, to sustain an ordinary routine, and to
complete a normal work day or week without interruption from his bi-polar
disorder were moderately impaired. Id. at 692 (citations, quotation marks, and
alterations omitted). The ALJ placed great weight on Dr. McNairn’s assessment
but did not discuss or analyze the limitations on Morinskey’s inability to sustain
gainful employment given his mental illness.
The district court gave the ALJ the benefit of the doubt by reading between
the lines of the ALJ’s discussion of Morinskey’s daily activities, and the
Commissioner also argues that the ALJ’s rationale is implied. But the ALJ is
required to state “specific and legitimate” reasons to explain why his conclusions

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outweigh the doctor’s opinion. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir.
1995); Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988). We agree with
Morinskey that there is inadequate discussion or rationale as to why the ALJ
disregarded the critical part of Dr. McNairn’s opinion. Orn v. Astrue, 495 F.3d
625, 630 (9th Cir. 2007) (“We review only the reasons provided by the ALJ in the
disability determination and may not affirm the ALJ on a ground upon which he
did not rely.”). The error is particularly noticeable because the ALJ expressly gave
the other parts of Dr. McNairn’s opinion substantial weight. Nor does the ALJ’s
restriction to a “low stress” job respond to the legal issue raised on appeal.
Importantly, Dr. McNairn, who was an examining consultant, gave an
opinion that was consistent with the overwhelming evidence in the medical records
of the treating physicians. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002)
(“the treating physician's opinion is given deference”); Embrey, 849 F.2d at 421.
Having carefully reviewed the medical records, we conclude that Dr. McNairn’s
findings, which echo the opinions of Morinskey’s treating physicians, concerning
Morinskey’s inability to complete a normal work day are supported by substantial
evidence. The related findings regarding Morinskey’s moderately impaired ability
to interact with others further strengthens the conclusion that he would be unable to
perform regular and continuous work. Rosin v. Sec’y of Health, Educ. & Welfare,

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379 F.2d 189, 195 (9th Cir. 1967) (employers are concerned with psychological
stability and steady attendance).
On this record, Morinskey is correct that the first hypothetical question
posed to the vocational expert did not accurately reflect his limitations. Gallant v.
Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984). When proper weight is afforded the
medical opinions of Morinskey’s mental limitations, the vocational expert’s
testimony on the second hypothetical establishes that Morinskey is unable to
complete a regular work day and is disabled.
“We may direct an award of benefits where the record has been fully
developed and where further administrative proceedings would serve no useful
purpose.” Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996) (citation omitted);
accord Moisa v. Barnhart, 367 F.3d 882, 886-87 (9th Cir. 2004); Reddick v.
Chater, 157 F.3d 715, 729-30 (9th Cir. 1998) (when evidence supported limitation,
and vocational expert testified claimant would not be able to work with that
limitation, award of benefits appropriate); Winans v. Bowen, 853 F.2d 643, 647
(9th Cir. 1987) (treating physician’s opinion supported award of benefits).
That standard is met in this case. The record is fully developed and there are
no outstanding issues that must be resolved. The ALJ failed to provide legally
sufficient reasons to reject Morinskey’s evidence that he is disabled. A careful

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1 Though Morinskey’s written application for benefits set an onset date of
2002, during the hearing, he amended the date to 2005.
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review of the treating and examining doctors' opinions supports the limitations
presented to the vocational expert in the second hypothetical (i.e., “this person
would be unable to complete a work day or week without interruption from
psychologically based symptoms”), therefore, the ALJ would be constrained to
conclude that Morinskey could not obtain gainful employment and qualifies for
disability benefits.1
REVERSED AND REMANDED.

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