FILED
NOT FOR PUBLICATION JUL 14 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SCOTT MCGARY, No. 10-35915
Plaintiff - Appellant, D.C. No. 4:09-cv-00117-RKS
v.
MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Montana
Keith Strong, Magistrate Judge, Presiding
Submitted July 12, 2011 **
Portland, Oregon
Before: GOODWIN, PREGERSON, and M. SMITH, Circuit Judges.
Plaintiff-Appellant Scott McGary appeals the district court’s decision to
remand his claim for disability insurance benefits for further administrative
proceedings rather than for immediate payment of benefits. The parties are
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
familiar with the facts, which we repeat here only to the extent necessary to explain
our decision. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
McGary argues that the credit-as-true rule applies to his case and that we
should remand with instructions for an immediate award of benefits. See Smolen v.
Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). But the Administrative Law Judge
(ALJ) in McGary’s case erred in assessing McGary’s residual functional capacity,
which led to additional errors in determining McGary’s ability to perform other
jobs which exist in significant numbers in the national economy. The parties do
not argue that the ALJ improperly discredited certain evidence, which is the type of
error in which a credit-as-true analysis would apply. See e.g., id. (remanding for
an award of benefits when the ALJ improperly rejected the physicians’ opinions,
plaintiff’s own symptom testimony, and lay witnesses testimony, and it was clear
that a finding of disability was required after properly crediting this evidence as
true). Accordingly, the credit-as true rule does not apply to McGary’s case.
Moreover, remand for further administrative proceedings is appropriate
where there are outstanding issues that must be resolved before a disability
determination can be made, and it is not clear from the record that the ALJ would
be required to find the claimant disabled if all the evidence were properly
evaluated. See Vasquez v. Astrue, 572 F.3d 586, 593 (9th Cir. 2009). There are
still outstanding issues in McGary’s case regarding his residual functional capacity
and the jobs he might be capable of performing given his manipulative limitations.
Thus, because there are “sufficient unanswered questions in the record,” the district
court’s decision to remand the case for further administrative proceedings was not
an abuse of discretion. Harman v. Apfel, 211 F.3d 1172, 1180 (9th Cir. 2000).
AFFIRMED.