FILED
NOT FOR PUBLICATION OCT 02 2013
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES BUCK, No. 12-35032
Plaintiff-Appellant, D.C. No. 2:10-cv-03045-LRS
v. MEMORANDUM**
CAROLYN W. COLVIN*,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, District Judge, Presiding
Argued and Submitted Thursday, May 9, 2013
Seattle, Washington
Before: THOMAS and NGUYEN, Circuit Judges, and DEARIE, Senior District
Judge.***
*
Carolyn W. Colvin, Acting Commissioner of Social Security, is
substituted for her predecessor, Michael J. Astrue, Commissioner of Social
Security, pursuant to Fed. R. App. P. 43(c)(2).
**
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
***
The Honorable Raymond J. Dearie, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
Charles Buck appeals the district court’s decision affirming the
Commissioner’s denial of Social Security benefits. Because the Commissioner’s
decision is not supported by substantial evidence, we reverse and remand to the
district court with instructions to remand to the Administrative Law Judge (ALJ)
for payment of benefits.
We review de novo a district court’s decision affirming the Commissioner’s
denial of Social Security benefits. Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir.
2012). The Commissioner’s decision may only be overturned if it is based on legal
error or is not supported by substantial evidence. Id. at 1158-59.
Despite considerable and consistent evidence of emotional deficits caused by
Buck’s bipolar and personality disorders, the ALJ concluded that Buck could
return to a warehouse job that he held for no more than three months in 2005. The
ALJ reached this decision without any input from a medical expert and without
considering what the warehouse job entailed. Records from Buck’s three
therapists; his treating psychiatrist; a consultative psychiatrist; and his primary
treating source, Nurse Practitioner Lisa Vickers, show that Buck received
consistent diagnoses of bipolar disorder or major depressive disorder from 2006 to
2009. His three therapists assessed moderate to severe limitations on Buck’s daily
functioning. Moreover, Nurse Practitioner Vickers, who saw Buck at least
fourteen times during this period, prescribed a growing roster of medications as she
sought an elusive combination of drugs to treat Buck’s anxiety, insomnia,
depression, and bipolar disorder. Instead of accounting for this contradictory
record evidence, the ALJ ignored the opinions of Buck’s therapists and Vickers,
selectively citing to temporary improvements in Buck’s functioning. Given the
episodic nature of bipolar disorder, short-lived improvements in functioning are
consistent with the diagnosis and cannot, by themselves, constitute substantial
evidence to override treating source opinions that Buck was significantly impaired.
See Taylor v. Comm’r of Soc. Sec., 659 F.3d 1228, 1234 (9th Cir. 2011)
(concluding that the ALJ erred in “hold[ing] against [claimant] two instances
where he was able to function, even though his alleged disability involves attacks
of muscle weakness . . . that come and go”); see also Agyeman v. I.N.S., 296 F.3d
871, 881 (9th Cir. 2002) (“Bipolar disorder is a severe psychiatric illness marked
by episodes of mania and depression, impairment of functioning—both cognitive
and behavioral, and is frequently complicated by psychotic symptoms (e.g.
delusions, hallucinations, and disorganized thinking).”) (emphasis added).
“We may direct an award of benefits if the record has been fully developed
and further administrative proceedings would serve no useful purpose.”
McCartney v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). Because the ALJ
failed to provide legally sufficient reasons for rejecting Buck’s evidence, there are
no outstanding issues that require resolution, and the record makes clear that Buck
is disabled and entitled to benefits, see id. at 1076-77, we instruct the district court
to remand this matter to the ALJ for payment of benefits.
REVERSED AND REMANDED.