FILED
NOT FOR PUBLICATION MAR 30 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARK E. DELEO, No. 08-17763
Plaintiff - Appellant, D.C. No. CV-07-2444-PHX-GMS
v.
MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
Social Security Administration,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Argued and Submitted March 12, 2010
San Francisco, California
Before: HUG and BYBEE, Circuit Judges, and GWIN, ** District Judge.
Appellant Mark E. Deleo appeals the district court’s remand of his social
security benefits application to the Commissioner for further administrative
proceedings. The district court found that the administrative law judge improperly
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
rejected assessments of Deleo’s limitations by two treating and one examining
physician and a vocational expert that Deleo could not perform any jobs. That
evidence, if credited as true, would require the ALJ to find Deleo disabled without
any further proceedings. See 20 C.F.R. § 404.1520. The statements of the
non-examining physician and the ALJ’s questions about Deleo’s travel and
volunteer work would not be sufficient to discredit the findings of the treating and
examining physicians and the vocational expert.
We hold that under our circuit’s “credit-as-true” rule, it was reversible error
for the district court to remand for further proceedings rather than for computation
of benefits. See, e.g., Varney v. Sec'y of Health & Human Servs., 859 F.2d 1396,
1401 (9th Cir. 1988) (“Varney II”) (“In cases where there are no outstanding issues
that must be resolved before a proper disability determination can be made, and
where it is clear from the administrative record that the ALJ would be required to
award benefits if the [improperly rejected evidence] were credited, we will not
remand solely to allow the ALJ to make specific findings regarding that
[evidence]. Rather, we will . . . take that [evidence] to be established as true.”).
Accordingly, we reverse the district court’s order and remand the case with
instructions to remand to the Commissioner for award of benefits.
2
The Commissioner does not challenge the district court’s finding that the
record did not contain substantial evidence to support the ALJ’s rejection of the
assessments of Deleo’s treating and examining physicians about Deleo’s
limitations. Nor does the Commissioner dispute the vocational expert’s testimony
that Deleo’s limitations would render a person unable to perform any job.
Rather, the Commissioner argues only that the credit-as-true rule is
discretionary in this circuit. See, e.g., Connett v. Barnhart, 340 F.3d 871, 876 (9th
Cir. 2003) (“[W]e are not convinced that the ‘crediting as true’ doctrine is
mandatory in the Ninth Circuit. Despite the seemingly compulsory language in
[several cases], there are other Ninth Circuit cases in which we have remanded
solely to allow an ALJ to make specific credibility findings.”). But even under the
line of cases holding that the credit-as-true rule is discretionary, it is an abuse of
discretion to remand for further proceedings where—as here—no further
proceedings are necessary to make a disability determination and it is clear from
the record that the claimant is entitled to benefits. See Benecke v. Barnhart, 379
F.3d 587, 596 (9th Cir. 2004).
REVERSED AND REMANDED WITH INSTRUCTIONS TO REMAND
TO THE COMMISSIONER FOR AN AWARD OF BENEFITS.
3