Below are collected Ninth Circuit SSD/SSI cases issued prior to Allen v. Secretary of HHS, 726 F.2d 1470 (9th Cir. 1984) 4 Soc.Sec.Rep.Ser.

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1 Below are collected Ninth Circuit SSD/SSI cases issued prior to Allen v. Secretary of HHS, 726 F.2d 1470 (9th Cir. 1984) 4 Soc.Sec.Rep.Ser. 129 United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 4, Decided March 2, *1471 Edmund Parent, Santa Barbara, Cal., for plaintiff-appellant. Michael R. Power, Asst. Reg. Atty., Dept. of Health & Human Services, San Francisco, Cal., for defendant-appellee. Appeal from the United States District Court for the Central District of California. Before FLETCHER and NELSON, Circuit Judges, and LYNCH, District Judge. FLETCHER, Circuit Judge: Allen appeals from an order of the district court upholding the Secretary's finding that Allen was not disabled. We reverse. FACTS Allen is 41 years old. He has worked as a plumber for several years, and has a bachelor's degree in fine arts. He filed applications for disability insurance benefits in 1979, alleging disability since 1971 due to arthritis, back and respiratory problems. At the hearing before the Administrative Law Judge (ALJ), Allen also presented evidence of mental problems and an ankle injury. The ALJ found that Allen was capable of doing at least sedentary work in an environment where he would not be exposed to respiratory irritants. Applying the Secretary's medical/vocational guidelines, the ALJ concluded Allen was not disabled. The Social Security Appeals Council affirmed. On review, the district court granted summary judgment for the Secretary and *1472 denied Allen's motion for a remand to consider new psychiatric evidence. ISSUES Allen raises three issues on appeal. Allen contends, first, that the Secretary did not meet her burden of proving there were jobs in the economy which Allen could perform; second, that the Secretary's finding that his mental problems did not limit his capacity for sedentary work is not supported by substantial evidence; and third, that two new psychiatric reports submitted to this court require remand. AVAILABILITY OF JOBS In reviewing the denial of a disability claim, this court must affirm if the Secretary's findings are supported by substantial evidence in the record as a whole and the Secretary applied the proper legal standards. Thompson v. Schweiker, 665 F.2d 936, 939 (9th Cir. 1982); Vidal v. Harris, 637 F.2d 710, 712 (9th Cir. 1981). A claimant has the initial burden of establishing a prima facie case of disability by showing that a physical or mental impairment prevents him from engaging in his Allen v. Secretary of HHS, 726 F.2d 1470 (9th Cir. 1984) PAGE 1

2 previous occupations. The burden then shifts to the Secretary to show that other substantial work, for which the claimant is qualified, exists in the national economy. Bonilla v. Secretary, 671 F.2d 1245, 1246 (9th Cir. 1982); Thompson, 665 F.2d at 939. Allen proved that, because of physical and respiratory impairments, he was no longer capable of working as a plumber. The ALJ concluded, based on a number of medical reports, that Allen was capable of performing at least sedentary work so long as he was not exposed to respiratory irritants. The ALJ did not take testimony from vocational experts on whether jobs were available in the economy for a person with Allen's limitations. Rather, he applied the Secretary's standardized medical-vocational guidelines. These guidelines identify whether a significant number of jobs exist which the claimant is capable of performing. The guidelines categorize claimants according to physical ability, age, education, and work experience. See 20 C.F.R. pt. 404, subpt. P, app. 2. According to the guidelines, Allen was not disabled. The Supreme Court has approved the use of the guidelines in lieu of vocational expert testimony in cases where they accurately describe the claimant's abilities and limitations. Heckler v. Campbell, --- U.S. ----, 103 S.Ct. 1952, 1955 note 5, 76 L.Ed.2d 66 (1983). The guidelines consider only limitations on the claimant's strength, i.e., "exertional limitations." If the claimant has a significant non-exertional limitation, such as a mental impairment or the inability to tolerate certain work environments, the ALJ must determine how much the claimant's work capacity is further limited by non-exertional restrictions. 20 C.F.R. pt. 404, subpt. P. app (e)(2). Allen contends that the Secretary was required to consider evidence, beyond the guidelines, on whether his respiratory problems significantly restricted the range of sedentary jobs available to him. We agree. Allen's lungs had suffered damage from prolonged exposure to epoxy resins during his years as a plumber and from his cigarette smoking. The ALJ found, and all medical experts agreed, that Allen must work in an environment free of respiratory irritants such as dust and noxious fumes. Although the ALJ concluded that this was not a "significant non-exertional impairment," there is no evidence at all in the record that there are a significant number of sedentary jobs which Allen could perform despite this restriction. [1] The Secretary's regulations specifically provide that the guidelines do not fully apply where the claimant suffers from an impairment that results in environmental restrictions, and lists as an example, "an inability to tolerate dust or fumes." 20 C.F.R. pt. 404, subpt. P. app. 2, (e). We have held that a remand is necessary where the ALJ applies the guidelines without considering the restrictions on available jobs caused by the claimant's inability to tolerate dust or fumes in the work environment. Kail v. Heckler, 722 F.2d 1496, 1498 *1473 (9th Cir. 1984). Accord Dellolio v. Heckler, 705 F.2d 123, 127 (5th Cir. 1983); Roberts v. Schweiker, 667 F.2d 1143, 1145 (4th Cir. 1981). Because the ALJ's conclusion that Allen's respiratory problems were not a significant non-exertional limitation is not supported by any evidence, we remand for the consideration of evidence, including testimony of vocational experts if necessary, as to whether there are a significant number of sedentary jobs available to Allen despite this limitation. 1 1 Our decision in Odle v. Heckler, 707 F.2d 439, 449 (9th Cir. 1983) is inapplicable here. In Odle, we held the guidelines were applicable despite the claimant's deafness, dizziness, and drug dependence. However, the deafness was essentially cured by a hearing aid and drug dependence was controlled by a treatment program. The dizziness was a recurring problem but was found not to limit the claimant's ability to do light work. Unlike the environmental restriction involved in Allen's case, dizziness would not have affected the claimant's ability to perform any of the jobs otherwise available to her. Allen v. Secretary of HHS, 726 F.2d 1470 (9th Cir. 1984) PAGE 2

3 MENTAL DISORDER [2][3] Allen contends that the Secretary erred in finding he did not have a significant mental impairment. It is the ALJ's role to resolve evidentiary conflicts. If there is more than one rational interpretation of the evidence, the ALJ's conclusion must be upheld. Richardson v. Perales, 402 U.S. 389, 399, 91 S.Ct. 1420, 1426, 28 L.Ed.2d 842 (1971); Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). Based on the reports of Drs. Patterson and Lunianski, and to a lesser extent, Dr. Heiman, the ALJ could rationally conclude that Allen's emotional disorder was not disabling. Moreover, there was some evidence that his disorder was amenable to control. The psychiatric evidence Allen cites in support of his argument is selective and shows primarily that a disorder exists. It does not show that it was of disabling severity. The ALJ's conclusion is supported by substantial evidence. NEW EVIDENCE [4] Allen asks this court to remand for consideration of new evidence consisting of the results of objective psychological tests and psychiatric evaluations. A claimant seeking remand must show "that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." 42 U.S.C. 405(g). Allen has not shown good cause for his failure to provide these psychiatric evaluations earlier in the proceedings. Although the reports offered were not made until 1982, Allen was aware of his mental problems at the time of the hearing. The only explanation Allen has offered for his failure to obtain the evidence earlier is that he was not represented by an attorney at the administrative hearing. Even if we accept this argument, it would not excuse Allen's failure to introduce the evidence in the district court. The obvious explanation is that when Allen was unsuccessful in the agency and district court hearings, he sought out new expert witnesses who might better support his disability claim. The "good cause" requirement would be meaningless if such circumstances were sufficient to allow introduction of new evidence. Our decision in Ward v. Schweiker, 686 F.2d 762 (9th Cir. 1982), does not hold otherwise. In that case, doctors had failed to discover that the claimant had been suffering from myasthenia gravis until she was admitted to a hospital after the Secretary's decision. Thus, the claimant could not have obtained the evidence at the time of her hearing. In our case, Allen knew of his mental problems and had had several prior psychiatric evaluations. The reports merely contain new interpretations of the same mental problems discussed in the earlier evaluations. He has not alleged that he could not have had these tests and evaluations made earlier. We reverse and remand to the district court with instructions to remand to the Secretary to take evidence as to whether jobs are available in the economy for a person with Allen's limitations. Allen v. Secretary of HHS, 726 F.2d 1470 (9th Cir. 1984) PAGE 3

4 Andrews v. Chater, 53 F.3d 1035 (9th Cir. 1995) 47 Soc.Sec.Rep.Ser. 620 United States Court of Appeals, Ninth Circuit. Argued and Submitted March 9, Decided May 1, *1037 Timothy P. Baxter, Lane County Legal Aid Service, Inc., Eugene, OR, for plaintiffappellant. Kathryn A. Warma, Asst. Regional Counsel, Dept. of Health and Human Services, Seattle, WA, for defendant-appellee. Appeal from the United States District Court for the District of Oregon. Before: HALL, O'SCANNLAIN, and RYMER, Circuit Judges. RYMER, Circuit Judge: Raymond E. Andrews appeals the district court's entry of summary judgment for the Secretary of Health and Human Services, affirming the Secretary's denial of Supplemental Security Income (SSI) benefits under Title XVI of the Social Security Act, 42 U.S.C et seq. Andrews argues that the Administrative Law Judge improperly rejected the conclusions of the examining psychologist without giving clear and convincing reasons for doing so, and that the determination of nondisability was not based on substantial evidence. 42 U.S.C. 405(g). He further asserts that, even if the ALJ were entitled to discount the opinion of the psychologist who examined him, the ALJ's decision must nonetheless be reversed because the hypothetical that formed the basis for the vocational expert's opinion did not accurately reflect the limitations found by the medical advisor. We have jurisdiction pursuant to 28 U.S.C We hold that the Secretary was entitled to adopt the opinion of the nonexamining medical advisor, who was present at the hearing and testified, and to discount the opinion of the examining physician, because the ALJ gave specific and legitimate reasons for doing so that were based on substantial evidence in the record in addition to the nonexamining psychologist's opinion. However, because we agree that the hypothetical given to the vocational expert was inadequate, we reverse and remand for further proceedings. I Andrews was born in He dropped out of high school but secured an equivalency certificate. Andrews has worked as an electrical machine winder, a pizza cook, a craftsman for a stained glass manufacturer, a carpenter/laborer, and a machine off-bearer. Andrews most recently worked as a cook in a restaurant, but by his own account quit after only half a day because of the stress involved. Andrews was homeless at the time of the hearing before the ALJ, living at a "mission" and doing cleaning and salvage work in exchange for his daily room and board. Andrews suffers from psoriasis which flares up periodically. Consequently, the ALJ found that jobs involving exposure to certain caustic substances and detergents are unsuitable. Andrews's appeal, therefore, challenges only the ALJ's view of his psychological problems: drug addiction, paranoia (schizotypal personality), adjustment disorder and depression, all allegedly resulting in an inability to function in social situations. Andrews was found disabled by the state of Oregon for the purpose of qualifying for state public assistance, and has been rejected for vocational rehabilitation because of his drug use. Andrews v. Chater, 53 F.3d 1035 (9th Cir. 1995) PAGE 1

5 In December 1987, Andrews was diagnosed as having a dysthymic mental disorder and a mixed substance abuse disorder. On September 30, 1990, Andrews presented in a hospital emergency room and was diagnosed with alcoholism, a mixed personality disorder, and an adjustment disorder with mixed features. William McConochie, Ph.D., a licensed psychologist, examined Andrews on four occasions in connection with Andrews's application for public assistance benefits provided by the state of Oregon. After the first examination, on November 6, 1990, McConochie concluded that Andrews did not "appear to be actively psychotic" and that his thought processes were "generally intact." He noted *1038 that Andrews was "somewhat paranoid." The diagnosis included major depression, recurrent, severe; and a schizotypal personality disorder. McConochie rated Andrews's prognosis as "poor." McConochie credited Andrews's claim that he had his drug problem under control. McConochie did not report conducting any standardized psychological or intelligence tests. McConochie examined Andrews again on April 3, Despite noting a general improvement in his mental condition, McConochie found him to be "unemployable for the next six months on the open job market." McConochie found that Andrews would benefit from work in a "semi-sheltered" setting. He examined Andrews for a third time on October 8, He noted Andrews's paranoia, anxiety and drug dependence and stated that Andrews was moderately depressed. The diagnosis was cannabis dependence, post-traumatic stress disorder based on an abusive childhood, and schizotypal personality disorder (relating to paranoia and anxiety). The prognosis was rated as "poor" and "chronic." McConochie noted that Andrews had "many excuses" for why he could not seek counseling or attend school. On December 16, 1991, McConochie filled out a "Medical Assessment of Ability to do Work-Related Activities (Mental)." On a four-point scale that ranged from "Unlimited/Very Good" to "Poor/None," McConochie rated Andrews's various employment related attributes as "Poor/None" in 12 of 15 categories. McConochie opined that Andrews was "severely handicapped by chronic drug abuse, depression and paranoid ideation." A December 31, 1991, evaluation yielded comments substantially similar to those made in the October evaluation. Andrews testified that he felt anxious and trapped in employment situations. He asserted that he had sought help with his mental health, but indicated a lack of resources to pay for a program and that "there aren't any free programs for males." Andrews testified that he had been "clean and sober" prior to October, 1991, but by that time began having anxiety attacks and "used marijuana as needed to control my anger and aggressive feelings." He said that, at the time of the hearing, he was using neither alcohol nor drugs; that he had no desire to smoke marijuana; and that he wanted to drink, but did not. Andrews testified that he had previously smoked about a gram of marijuana a day for a two week period in 1991, although McConochie's reports from this period indicate a longer period of use. Andrews testified that he had stopped drinking around December, 1990; however, he told McConochie in November, 1990, that he had stopped drinking 18 months earlier. According to Andrews's testimony, he briefly shared an apartment with a woman that he was "trying to have a relationship with." Another brief relationship ended after the woman was diagnosed with "multiple personality disorder." Andrews stated that he regularly attends local Alcoholics Anonymous meetings and stays until closing at 10:00 PM, when he goes to the mission. He stated that he has no problem sleeping. Andrews testified that he considers the police a potential enemy and that he feels threatened by the "movement" against the right to bear arms, but stated that he didn't think "people are following me around." Andrews stated that despite the hostile environment he experienced on the streets, "I'm not out there stealing and I'm not out there killing people for money and I still have the desire to succeed if I'm given a chance." Andrews stated that he had attempted suicide in the past but now doesn't "think about it in the sense where I'm going to carry it out today." He testified that he went to Sacred Heart Hospital on two occasions after anxiety attacks; the visits were unsuccessful because Andrews perceived the counselor as hostile. Andrews Andrews v. Chater, 53 F.3d 1035 (9th Cir. 1995) PAGE 2

6 noted that he had learned "manipulation" on the streets, and that when he would go before a court he would "play stupid" to "get leniency." Andrews's medical files were reviewed by five mental health professionals, including two psychiatrists, for purposes of determining disability. None rated him as more than moderately impaired in any category on the mental residual functional capacity (MRFC) form. One, Janice Green, Ph.D., a psychologist with special experience in the treatment of substance abuse, testified at the January * , 1992, disability hearing before the ALJ. Green did not examine Andrews in a clinical setting, but she had reviewed Andrews's medical records and heard him testify. Based on these observations, she expressed the opinion that Andrews's primary disability was polysubstance abuse; that Andrews was able to control his drug use and that, in light of his activities, the abuse was in remission; that Andrews's medical record was based on self-reporting; that there probably was a personality disorder, but the record did not support a diagnosis of schizophrenia; and that his work limitations would consist of slight restrictions in daily activities, minor difficulty in social function, regular occurrences of deficiency of concentration, persistence and pace, and one or two episodes of deterioration. Her assessment of Andrews's mental residual functional capacity concurred with that made on July 9, 1991, by K. Bates Smith, Ph.D., which was based on a review of documentary evidence, including McConochie's evaluations to that date. According to this evaluation, Andrews was no more than moderately limited in any of the 20 standard categories. Green also opined that the results of psychological testing would be clouded by Andrews's substance abuse and thus unreliable. The ALJ found that Andrews was not an uncontrollable alcohol or drug addict and that he was "a very skillful, manipulative person who has learned to exploit persons and situations to his best advantage." Because McConochie's opinion as to disability was made "without consideration of the claimant's own admission that he is a manipulator and therefore not a generally credible person," and because the substance abuse rendered the psychological diagnosis unreliable, the ALJ rejected McConochie's conclusion that Andrews was disabled and his assessment of Andrews's residual functional capacity. Finding that Andrews was not a "medically determined alcoholic or drug addict," as defined in 20 C.F.R , since he had not lost the voluntary ability to control his substance use, the ALJ concluded that Andrews was not disabled. The ALJ also found that, because of his psoriasis, Andrews had established his inability to perform his past work. Having rejected Andrews's mental impairment claims, the ALJ relied on the vocational expert's answer to a hypothetical involving only Andrews's psoriasis and a need to have "minimal interaction" with other people. Based on this hypothetical, the vocational expert concluded that the claimant could still perform 150,000 to 175,000 jobs in the national economy. Accordingly, the ALJ found that Andrews was not disabled and denied his application for benefits. The Appeals Council denied review, and the decision of the ALJ became the final decision of the Secretary. Andrews filed an action for review of the Secretary's decision in district court pursuant to 42 U.S.C. 1383(c)(3). By consent of the parties, a magistrate judge heard the case and entered final judgment. 28 U.S.C. 636(b)(1)(C). The magistrate judge granted summary judgment in favor of the Secretary, affirming her decision. Andrews now appeals. II [1, 2] "The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive..." 42 U.S.C. 405(g). The Secretary's decision to deny benefits will be disturbed only if it is not supported by substantial evidence or is based on legal error. Magallanes v. Bowen, Andrews v. Chater, 53 F.3d 1035 (9th Cir. 1995) PAGE 3

7 881 F.2d 747, 750 (9th Cir. 1989). 1 Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. To determine whether substantial evidence supports the ALJ's decision, we review the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion. Id. The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities. Id. We must uphold the ALJ's decision where *1040 the evidence is susceptible to more than one rational interpretation. Id. [3] The Secretary has established a five-step sequential evaluation process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, , 96 L.Ed.2d 119 (1987); 20 C.F.R The claimant bears the burden of proving entitlement to disability benefits. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984). If, as in this case, the claimant shows that he is unable to perform past relevant work, the burden shifts to the Secretary to show that the claimant can engage in other types of substantial gainful work that exists in the national economy. Id. In this case, the ALJ found that Andrews's psoriasis prevented him from returning to his past relevant work, but found that Andrews had no mental impairments that, singly or in combination, were "medically equal" to those listed in 20 C.F.R. Pt. 404, Subpt. P., App III Andrews offers a number of arguments concerning why the Secretary erred in denying benefits, but they all turn on whether the ALJ properly rejected the conclusions of the examining psychologist. 2 The magistrate judge upheld the ALJ's rejection of McConochie's conclusions that Andrews is severely limited in his work-related mental abilities on two grounds: first, that McConochie's opinion as a nontreating physician is not entitled to any particular deference; and second, that the ALJ's decision is supported by substantial evidence as (1) McConochie's conclusions are based only on information from Andrews and Andrews isn't credible, and (2) the testifying medical advisor's conclusions are supported by opinions of the state disability reviewers under contract with the Secretary. Andrews takes issue with both aspects of the magistrate judge's reasoning. He submits that McConochie's opinion was tantamount to that of a treating source because he clinically examined Andrews four times in thirteen months. In addition, he argues, Green never examined him, and her and the ALJ's reliance on reports of nonexamining medical advisors, none of whom made independent clinical findings, is insufficient to make Green's opinion substantial evidence upon which the denial of benefits may be upheld. For this reason, Andrews contends, McConochie's opinion could only be rejected for clear and convincing reasons, which, he contends, the ALJ failed to give. The Secretary emphasizes that there was no treating physician here, and that Andrews never sought treatment for the mental conditions upon which his claim is based. Further, the Secretary notes that an ALJ may properly consider a claimant's lack of credibility and the extent to which his physician's opinion is influenced by the claimant's own information. Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). Finally, she contends that because the reports of medical advisors may serve as substantial evidence, Green's testimony was consistent with reports of four other medical advisors, Andrews's representations weren't credible and McConochie was not a treating physician, 1 We review de novo the district court's grant of summary judgment to the Secretary. Magallanes, 881 F.2d at Although Andrews complains of psoriasis, the appeal focuses on his mental capacity to engage in substantial gainful activity. Andrews v. Chater, 53 F.3d 1035 (9th Cir. 1995) PAGE 4

8 McConochie's opinion was properly rejected for specific, legitimate reasons based on substantial evidence in the record. We have frequently considered the law governing the opinions of treating physicians in disability cases, most comprehensively in Magallanes. However, we have not directly addressed the extent to which the Magallanes guidelines apply to the opinions of examining physicians and their relationship to the opinions of nonexamining medical advisors called by the Secretary. We must do so here, because there is no treating psychologist in this case. Rather, the record consists of testimony and reports by an examining psychologist whom Andrews saw for clinical evaluation to get SSI benefits, reports of four medical/psychological advisors, and the testimony of the claimant and a nonexamining psychologist expert called by the ALJ. A [4] It is clear that more weight is given to a treating physician's opinion than to the *1041 opinion of a nontreating physician because a treating physician "is employed to cure and has a greater opportunity to know and observe the patient as an individual." Magallanes, 881 F.2d at 751 (quoting Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)). Likewise, greater weight is accorded to the opinion of an examining physician than a non-examining physician. 20 C.F.R (d)(1); see Pitzer v. Sullivan, 908 F.2d 502, 506 n. 4 (9th Cir. 1990). [5, 6] While the ALJ may disregard the opinion of a treating physician, whether or not controverted, the ALJ may reject an uncontroverted opinion of a treating physician only for clear and convincing reasons. Magallanes, 881 F.2d at 751. We have said that the same rule applies to the opinions of an examining physician in the absence of legitimate conflicting testimony and any reason for the ALJ's rejection of the examining physician's opinion. See Pitzer, 908 F.2d at 506. Where the opinion of the claimant's treating physician is contradicted, and the opinion of a nontreating source is based on independent clinical findings that differ from those of the treating physician, the opinion of the nontreating source may itself be substantial evidence; it is then solely the province of the ALJ to resolve the conflict. Magallanes, 881 F.2d at 751. Where, on the other hand, a nontreating source's opinion contradicts that of the treating physician but is not based on independent clinical findings, or rests on clinical findings also considered by the treating physician, the opinion of the treating physician may be rejected only if the ALJ gives specific, legitimate reasons for doing so that are based on substantial evidence in the record. Id. at 751, 755. See Ramirez v. Shalala, 8 F.3d 1449, 1453 (9th Cir. 1993) (applying test where ALJ relied on contradictory opinion of nonexamining medical advisor). Andrews argues that the district court incorrectly relied on Magallanes to credit the opinions of the nonexamining hearing expert as substantial evidence supporting the ALJ's finding of nondisability because Green's opinions were not supported by the findings or opinions of an examining or treating expert and were not based on independent clinical findings. We agree with Andrews that the district court erred in stating that the examining physician's opinion is not entitled to any particular deference. Both the regulations, 20 C.F.R (d)(1), and our precedent, see Pitzer, 908 F.2d at 506 n. 4, state that the conclusion of a nonexamining expert is generally entitled to less weight than the conclusion of an examining physician. However, giving the examining physician's opinion more weight than the nonexamining expert's opinion does not mean that the opinions of nonexamining sources and medical advisors are entitled to no weight. [7] As we explained in Magallanes, where the ALJ relied on a nonexamining source's testimony on limitations to reject the opinion of the claimant's treating physician, the report of a nonexamining, nontreating physician need not be discounted when it "is not contradicted by all other evidence in the record." Id. at 752 (emphasis in original). Reports of consultative physicians called in by the Secretary may serve as substantial evidence. Indeed, Andrews v. Chater, 53 F.3d 1035 (9th Cir. 1995) PAGE 5

9 [t]he analysis and opinion of an expert selected by the ALJ may be helpful to the ALJ's adjudication, and we should not impose "burdensome procedural requirements that facilitate... second-guessing [the ALJ's resolution of conflicting medical testimony]." Id. at 753 (quoting Allen v. Heckler, 749 F.2d 577, 580 (9th Cir. 1984)). A fortiori, when it is an examining physician's opinion that the ALJ has rejected in reliance on the testimony of a nonexamining advisor, reports of the nonexamining advisor need not be discounted and may serve as substantial evidence when they are supported by other evidence in the record and are consistent with it. We therefore decline Andrews's invitation to hold that a nonexamining medical advisor's statements inevitably deserve "little" or no weight. [8] Nor do we share Andrews's view that the ALJ could only meet the burden for rejecting his examining psychologist's opinion by giving clear and convincing reasons. In the cases upon which he relies that impose this burden, Fife v. Heckler, 767 F.2d 1427 (9th Cir. 1985), Montijo v. Secretary, 729 F.2d 599 (9th Cir. 1984), and Pitzer, there was no 1042 evidence contrary to the opinion of the claimant's physician and conversely, none supporting the conflicting opinion of the ALJ or the Secretary's consultant. In Fife, a speculative comment that the claimant might be able to return to work after removal of a cast did not contradict clinical, post-cast determinations of disability. In Montijo, there was no medical evidence or opinion contrary to that of the claimant's psychiatrist and psychologist; indeed, there is no indication that the record contained any opinion of a medical advisor. And in Pitzer, there was nothing in the record to support the nonexamining physicians' written reports and the Secretary's conclusion that the claimant, who had not worked in fifteen years and couldn't return to her former work, had the functional capacity to perform gainful work. For that reason, the nonexamining physicians' opinions "with nothing more" could not constitute substantial evidence. Pitzer, 908 F.2d at 506 n. 4. Here, there is legitimate conflicting testimony by Dr. Green and Andrews, and the ALJ gave specific reasons for disregarding the conflicting observations, opinions and conclusions of McConochie. We are thus not obliged to inquire whether the ALJ failed to give clear and convincing reasons for rejecting McConochie's opinions. B [9] Our review of the record persuades us that the ALJ met the appropriate burden for discrediting McConochie's diagnosis and rejecting his opinion that Andrews was severely handicapped by chronic drug abuse, depression and paranoid ideation such that he was a poor occupational candidate. Andrews consulted McConochie only because he had to in order to obtain benefits; McConochie himself observed that Andrews had no interest in pursuing treatment for his self-reported psychological symptoms. 3 Andrews admitted that he manipulated situations to his advantage, and that he self-treated his anxiety by smoking marijuana. Green, the nonexamining psychologist, testified as well. Because she was subject to cross-examination, the ALJ could legitimately credit her testimony. See Torres v. Secretary of H.H.S., 870 F.2d 742, 744 (1st Cir. 1989) (greater weight may be given to opinion of nonexamining expert who testifies at hearing subject to cross-examination); see also Ramirez, 8 F.3d at 1453 (noting that nonexamining physician testified at the hearing as a medical expert). Green had special expertise in the treatment of substance abuse; there is nothing to suggest that McConochie had any. Under the regulations, the 3 The definition of "treating source" a classification that generally results in an opinion being assigned greater weight under 20 C.F.R (d)(2) explicitly excludes a physician or psychologist with whom the claimant's relationship is based "solely on your need to obtain a report in support of your claim for benefits." 20 C.F.R Andrews v. Chater, 53 F.3d 1035 (9th Cir. 1995) PAGE 6

10 ALJ could properly credit Green's opinion on account of her expertise. 20 C.F.R (d)(5). 4 She stated that McConochie's ability to diagnose Andrews accurately was compromised by Andrews's substance abuse (the existence of which was undisputed) and that the reliability of McConochie's diagnoses was further undermined because they were based entirely on "self report" by Andrews. Green pointed to Andrews's inconsistent stories about his history of substance abuse as typical of substance abusers, and opined that the uncorroborated self report of substance abusers is unreliable. It was Green's opinion, based upon Andrews's testimony and medical history, that his condition was controllable. Finally, Green adopted Dr. Smith's MRFC assessment that Andrews was no more than moderately limited in any of the 20 standard categories. Green's opinions were consistent with Andrews's testimony, as well as with the written reports of the four other experts who reviewed Andrews's medical records. She parted company with McConochie only insofar as he failed adequately to consider the diagnostic implications of Andrews's substance abuse, an area in which she possesses particular expertise. *1043 [10] The ALJ set all of this out in a detailed and thorough summary, including his interpretation of the evidence and a comparison with McConochie's diagnosis and opinions. Magallanes, 881 F.2d at 751. He found that McConochie's conclusions regarding depression, posttraumatic stress disorder and schizotypal personality disorder were unreliable because of Andrews's contemporaneous substance abuse. The ALJ found that Andrews lacked credibility, based in part on the admission that he had learned to "manipulate" programs and people and "would play stupid" in court to avoid punishment, and based in part on the fact that Andrews's disabilities appeared to cause "no significant disruption of his daily activities or concentration ability." Credibility determinations are the province of the ALJ. Magallanes, 881 F.2d at 750. Because McConochie's diagnoses were based on the self reporting of an unreliable person, the ALJ decided to accord them less weight. This he could legitimately do; an opinion of disability premised to a large extent upon the claimant's own accounts of his symptoms and limitations may be disregarded, once those complaints have themselves been properly discounted. Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, (9th Cir. 1995). As the ALJ then stated, the question narrowed to whether Andrews was disabled by means of his inability to control the use of drugs or alcohol. Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993) (alcoholism is not per se disabling, but can constitute a disability if it is uncontrollable). In this regard, the ALJ pointed to Andrews's testimony that he had been able to control his alcohol and drug dependence for years at a time, to Green's conclusion that Andrews was not an uncontrollable substance abuser, and to medical reports in the record indicating that Andrews had been able to stop his drug and alcohol use for extended periods of time. In sum, the ALJ gave specific, legitimate reasons for rejecting the examining psychologist's opinions and for relying on the nonexamining medical expert's opinion instead, which was based on a review of the medical records, was consistent with the written reports of four other experts and with Andrews's testimony, and legitimately controverted McConochie's observations, opinions and conclusions. The ALJ's reasons were based on Andrews's testimony, weaknesses in the examining psychologist's diagnosis and conclusions as shown by Andrews's testimony and Green's opinion, the opinions and analysis of the nonexamining psychologist who testified as a medical expert, and the written reports of other medical advisors. This constitutes substantial evidence. We therefore hold that the ALJ met his burden of giving specific, legitimate reasons based on substantial evidence for rejecting the examining physician's opinion on mental residual functional capacity in favor of the nonexamining expert's opinion. IV 4 Section (d)(5) provides: "We give more weight to the opinion of a specialist about medical issues related to his or her area of specialty than to the opinion of a source who is not a specialist." Andrews v. Chater, 53 F.3d 1035 (9th Cir. 1995) PAGE 7

11 Andrews next argues that, even if the Secretary properly chose Green's residual functional capacity assessment over McConochie's, she has failed to carry her burden of showing that Andrews is capable of performing specific jobs in the economy because the hypothetical posed to the vocational expert did not reflect all of Andrews's functional limitations as found by Green. We agree. [11] If a claimant shows that he cannot return to his previous work, the Secretary must show that the claimant can do other kinds of work. Magallanes, 881 F.2d at 756. The Secretary may carry this burden by eliciting the testimony of a vocational expert in response to a hypothetical that sets out all the limitations and restrictions of the claimant. Id. Although the hypothetical may be based on evidence which is disputed, the assumptions in the hypothetical must be supported by the record. Gallant, 753 F.2d at As we have held, Green's assessment of Andrews was supported by the record. [12] Andrews, however, argues that the hypothetical put to the vocational expert, Vernon Arne, did not adequately reflect even Green's residual functional capacity assessment. Green adopted Dr. Smith's assessment, which found Andrews "not significantly limited" or "without evidence of limitation" in 14 of 20 categories. Smith rated Andrews "moderately limited" in his ability to interact appropriately with the general public, and in *1044 three "concentration and persistence" categories: ability to understand and remember detailed instructions, to carry out detailed instructions, and to work in coordination with or proximity to others without being distracted by them. Andrews was also rated moderately limited in two "adaptation" categories: ability to respond appropriately to changes in the work setting and to set realistic goals or make plans independently of others. According to Green, Andrews is markedly limited in no category. The relevant part of the ALJ's hypothetical stated: I do want you to assume that... we... have an individual who s h o u l d h a v e a n occupation that involves minimal interaction. Weren't frequent [sic] dealing with the public and coworkers... [W]ould the carpenter's labor be able to be p e r f o r m e d u n d e r t h o s e restrictions. The ALJ's hypothetical refers only to Andrews's social limitations and not to his moderate limitations in other areas. Arguably, Arne clarified the ALJ's hypothetical in connection with Andrews's restricted ability to follow instructions by responding that, as a carpenter, "you do have to receive instructions from a supervisor" and that it "isn't a position you can perform in an isolated manner." Apparently, the idea of carpentry was dropped; Arne then proposed the jobs of machine off-bearer, hardware assembler, hand packager, and wire preparer as jobs that would "fit your hypothetical as involving no public contact and probably minimal interaction with coworkers." However, there is no indication that Arne considered Andrews's limitations in "adaptation." Since the hypothetical must consider all of the claimant's limitations, Magallanes, 881 F.2d at 756, the ALJ's hypothetical was insufficient to carry the Secretary's burden of proving ability to engage in work in the national economy. Arne was present throughout the hearing, but we cannot assume that he ventured beyond the ALJ's hypothetical and incorporated all limitations discussed by Green in her testimony. Accordingly, we reverse and remand this case to the district court with instructions to remand to the Secretary for a determination of vocational ability based upon a hypothetical that accurately reflects Andrews's mental residual functional capacity. REVERSED and REMANDED. Andrews v. Chater, 53 F.3d 1035 (9th Cir. 1995) PAGE 8

12 Beecher v. Heckler, 756 F.2d 693 (9th Cir. 1985) 9 Soc.Sec.Rep.Ser. 55 Argued June 4, Resubmitted July 27, Decided March 26, *693 Francis P. Licata, Liebman & Reiner, Los Angeles, Cal., for plaintiff-appellant. Dennis J. Mulshine, San Francisco, Cal., for defendant-appellee. Appeal from the United States District Court for the Central District of California. Before CHAMBERS and CHOY, Senior Circuit Judges, and SKOPIL, Circuit Judge. *694 CHOY, Senior Circuit Judge: Beecher appeals the Secretary's decision to deny her disability benefits under section 223 of the Social Security Act, 42 U.S.C Beecher worked in a warehouse until January 1974, when she claims she became disabled due to the combined effects of a back injury and psychiatric problems. She returned to work briefly in early 1975 but has not been employed since then. Beecher last met the special earnings requirement of the Social Security Act for disability insurance purposes on March 31, At her administrative hearing, numerous medical reports were introduced into evidence. Dr. Wong, an orthopedic surgeon, examined plaintiff in March Because he could find no serious physical impairment, he felt that Beecher's complaints of pain were subjective and exaggerated. He felt that she could return to her regular work later that month. Dr. Karbelnig, an orthopedic surgeon, examined Beecher in June He diagnosed her as suffering from a lumbosacral musculoligamentous strain and sprain. He believed that she could perform light work provided she lifted no more than 20 to 25 pounds and avoided repeated stooping, squatting, or bending. Dr. Ritter, an orthopedic surgeon, examined plaintiff in July He stated that there were no objective findings of orthopedic disease other than x-ray evidence of a transitional vertebra in her lumbar spine. But on the basis of her subjective complaints of pain, he would restrict her from repetitive bending and heavy lifting. Dr. Feld, a neurologist, examined plaintiff in February He believed that she suffered from no neurological disease but felt that there might be some undetermined psychiatric illness. He did not give an opinion as to her ability to work. Dr. Anselen, a psychiatrist and neurologist, examined Beecher in July After a complete psychiatric examination, he concluded that she suffered from a post-traumatic neurosis with a mixture of hysterical and hypochondriacal ideas. He stated, "I doubt very much that at present she is able to compete in the labor market." Dr. Smith, a chiropractor, examined Beecher in November He felt there was a moderate to severe lumbo-sacral sprain with muscle spasm and a lumbo-sacral myofasciitis with muscle spasm. He concluded that Beecher should be limited to light work. The administrative law judge (ALJ) determined, on the bases of these medical reports and Beecher's testimony, that plaintiff had a severe medically determined impairment which precluded her from returning to her former work. However, he concluded that Beecher was able to perform Beecher v. Heckler, 756 F.2d 693 (9th Cir. 1985) PAGE 1

13 at least light work. Consequently, he applied Tables 1 and 2 of the Medical-Vocational Guidelines, 20 C.F.R. at (Appendix 2), corresponding to the capacities to perform sedentary and light work, respectively, and found that Beecher was not disabled. On appeal, the district court concluded that there was substantial evidence to support the Secretary's determination that Beecher was not disabled due to her ability to perform light or sedentary work. Plaintiff now appeals to this court arguing, inter alia, that there is no substantial evidence to support the conclusion that she was able to perform sedentary or light work. Beecher's main contention is based on Dressel v. Califano, 558 F.2d 504 (8th Cir. 1977), in which the Eighth Circuit held that medical reports which only consider a claimant's physical impairments cannot amount to substantial evidence for a finding of ability to perform sedentary work when the claimant is found to suffer from both physical and psychological problems. 558 F.2d at 508. See also Behnen v. Califano, 588 F.2d 252, 255 (8th Cir. 1978). "A claimant's illnesses must be considered in combination and must not be fragmentized in evaluating their effects." Dressel, 558 F.2d at 508. [1] Because a person's ability to engage in gainful employment is dependent upon *695 both physical and psychological capabilities, we believe the Eighth Circuit has taken the correct approach to disability claims. See Montijo v. Secretary of Health and Human Services, 729 F.2d 599, 602 (9th Cir. 1984) (citing Behnen v. Califano, 588 F.2d 252). We subscribe to the holding in Dressel. [2] In support of his decision, the ALJ cited those medical reports which concluded that Beecher could perform sedentary to light work. However, all of these reports were filed either by orthopedic surgeons (Drs. Wong, Karbelnig, and Ritter) or by chiropractors (Dr. Smith), who did not conduct any psychological examinations of Beecher. There are no reports considering the combined effects of Beecher's physical and psychological impairments which concluded that she could perform sedentary or light work. Dr. Feld felt that Beecher might be suffering from some undetermined psychiatric illness. Consequently, Beecher was given a complete psychiatric examination by Dr. Anselen, a psychiatrist and neurologist. His report, the only one to consider Ms. Beecher's psychological impairments and the only one based on a full psychiatric examination, concluded that it is "[very doubtful] that at present she is able to compete in the labor market." 1 This is not a case where there are conflicting medical viewpoints and the ALJ simply chose one view over the other. Rather, because the reports of Drs. Wong, Karbelnig, Ritter, and Smith only considered Beecher's physical impairments, whereas Dr. Anselen's report took into account psychological problems as well, "we cannot conclude that the opinions conflict, but only that they are not drawn from the same facts." Dressel, 558 F.2d at 508 n. 6. Dr. Anselen's opinion is "uncontradicted in the record, as none of the other physicians conducted psychiatric examinations." Behnen, 588 F.2d at 254 (footnote omitted). It is true that Dr. Anselen's statement that Beecher is "[un]able to compete in the labor market" does not necessarily mean he felt she could not work at all, i.e., that she could not even perform sedentary or light work. His statement is thus arguably ambiguous with respect to a crucial issue. However, given that Beecher successfully demonstrated that she could "no longer engage in 1 Dr. Anselen's diagnosis of post-traumatic neurosis with a mixture of hysterical and hypochondriacal ideas is supported by Dr. Kyle, a clinical psychologist, who concluded, after conducting numerous psychological tests, that Beecher reflected a post-traumatic reaction having both hysterical and obsessive compulsive features. Dr. Kyle, however, offered no opinion as to Beecher's capacity to engage in employment. Beecher v. Heckler, 756 F.2d 693 (9th Cir. 1985) PAGE 2

14 [her] former occupation, it [was] incumbent on the Secretary to show that there [were] other types of work which the claimant [was] capable of doing." Benitez v. Califano, 573 F.2d 653, 655 (9th Cir. 1978) (quoting Rosin v. Secretary of Health, Education and Welfare, 379 F.2d 189, 195 (9th Cir. 1967)). Thus, it is the Secretary, and not Beecher, who must bear the burden of clarifying the ambiguity. Because the only medical reports that unambiguously concluded that plaintiff could perform sedentary or light work were based solely on physical impairments, while the one report that considered Beecher's psychological problems found significant mental impairment, the Secretary failed to prove that Beecher retained the functional capacity to perform sedentary or light work. Therefore, given the holding in Dressel, this court concludes that there was no substantial evidence in the record to support the ALJ's finding that Beecher could perform sedentary to light work. [3] Consequently, the ALJ had no factual basis for using Tables 1 and 2 of the Medical-Vocational Guidelines, corresponding to the capacities to perform sedentary and light work, respectively, in finding no disability. 2 *696 We reverse the judgment of the district court, and remand with instructions that the Secretary be required to consider the combined effects of claimant's physical and psychological impairments upon her past ability to engage in substantial gainful activity. REVERSED AND REMANDED. 2 Beecher's other contentions are without merit. Contrary to Beecher's claim, the Secretary is no longer required to enunciate the specific jobs that claimant is capable of performing, but instead may rely on the Medical-Vocational Guidelines. See Heckler v. Campbell, 461 U.S. * , 470, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983); Odle v. Heckler, 707 F.2d 439, 440 (9th Cir.1983). Beecher also argues that the ALJ's rejection of her subjective complaints of severe and disabling pain is inconsistent with the ALJ's finding that plaintiff suffered from a post-traumatic neurosis based in part on a condition of hypochondria. However, it is not clear that there is any necessary contradiction as the psychiatric diagnosis does not necessarily imply that she subjectively experienced severe and disabling pain. Finally, Beecher argues that the ALJ failed to liberally construe the Social Security Act, see Dorsey v. Heckler, 702 F.2d 597, 605 (5th Cir. 1983), because he allegedly failed to consider the potential bias in the medical opinions, most of them being prepared at the request of the insurance carrier. Beecher, however, failed to present any evidence of actual bias and there is no precedent to support any presumption of bias in such situations. Beecher v. Heckler, 756 F.2d 693 (9th Cir. 1985) PAGE 3