FILED
NOT FOR PUBLICATION NOV 15 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WAYNE KELLBERG, No. 12-35765
Plaintiff - Appellant, D.C. No. 9:12 cv-0018 JCL
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Montana
Jeremiah C. Lynch, Magistrate Judge, Presiding
Argued and Submitted October 10, 2013
Seattle, Washington
Before: TASHIMA, GRABER, and MURGUIA, Circuit Judges.
Wayne Kellberg appeals the district court’s judgment affirming the denial of
Kellberg’s application for supplemental security income (“SSI”) under Title XVI
of the Social Security Act. The administrative law judge (“ALJ”) found, applying
the five-step sequential evaluation process, 20 C.F.R. § 404.1520(a)–(g), that
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Kellberg was not disabled within the meaning of the Act, 42 U.S.C. § 1382c(a)(3),
because he retained the ability to perform a limited range of light work. We have
jurisdiction under 28 U.S.C. § 1291, and we reverse and remand.
1. Before Kellberg filed his SSI application, Dr. John Harrison evaluated
Kellberg and diagnosed him with a personality disorder and other mental
impairments including chronic pain syndrome, attention deficit hyperactivity
disorder, alcoholism, and a maladjusted personality profile. These diagnoses were
not contradicted by any other doctor. An ALJ may reject the uncontradicted
opinion of an examining physician only for clear and convincing reasons. Hill v.
Astrue, 698 F.3d 1153, 1159–60 (9th Cir. 2012). Likewise, an ALJ must consider
all the evidence of a claimant’s impairments when making a disability
determination. 42 U.S.C. § 423(d)(5)(B); 20 C.F.R. § 416.920(a)(3). The ALJ did
not provide clear and convincing reasons for rejecting Dr. Harrison’s diagnoses.
Nor did the ALJ mention Dr. Harrison’s uncontradicted diagnoses of Kellberg’s
other mental impairments at any step in the sequential evaluation process. The
ALJ had a duty to develop the record fully and fairly to determine whether and to
what extent Kellberg’s functioning was impaired. Smolen v. Chater, 80 F.3d 1273,
1288 (9th Cir. 1996). Having failed to develop the record to determine whether
Kellberg’s mental impairments were ongoing, the ALJ could not then reject Dr.
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Harrison’s uncontradicted diagnoses as unsupported by the record during the
relevant time period. To do so constituted reversible error. See Stout v. Comm’r,
Soc. Sec. Admin., 454 F.3d 1050, 1054–56 (9th Cir. 2006).
2. We conclude, contrary to Kellberg’s contention, that he is not entitled
to an immediate award of disability benefits. Because there are “outstanding issues
that must be resolved before a determination of disability can be made” and
because it is not “clear from the record that the ALJ would be required to find the
claimant disabled if he considered the claimant’s evidence,” a remand for the
award of benefits would be premature. McCartey v. Massanari, 298 F.3d 1072,
1076–77 (9th Cir. 2002).
We therefore reverse the judgment of the district court and remand with
instructions to further remand the case to the agency for proceedings consistent
with this disposition.
REVERSED and REMANDED.
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