F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

A P R I L M. D O M I

N G U E Z , Plaintiff-Appellant

,

v.

C A R O L Y N W

. C O L

V I N , Commissioner of Social Security

,

Defendant-Appellee

. No. 13-17380

D.C. No. 2:12-cv-01589-B SB

ORDER AND AMENDED OPI NI ON

A ppeal from the United States District Court for the District of Ariz o na B ridg e t S. B ade, Mag istrate J u dg e, Presiding

Arg ued and Submitted November 20, 2015—San F rancisco, California

F iled December 14, 2015 A mended F e b r

uary 5, 2016

B efore: Michael J

. Melloy

, * Sandra S. I kuta, and Andrew D. Hurwitz

, Circuit J udg es.

Order; Opinion by J udg e I k

uta

* T h e Ho n o rab l e M i c h a e l J

. Mello y , Sen io r Circu it J u dg e f o r t h e U .S. Co u rt o f A p peals f o r th e Eig h th

Circu it, sittin g b y

d esig n atio n

.D O M I N G U E Z V

. C O L

V I N 2

SUMMARY * *

Social Security

The panel affirmed the district c ourt’s o r d e r remanding the case t o t h e Social Security Administrative L aw J udg e ( “AL J ”) for further proceeding s after the g overnment conceded tha t the AL J made a leg al error in deciding claimant’s application for disability b enefits under the Social Security Act.

The pan e l h e l d that the district court did not err in remanding the case to the AL J for f urther factual proceeding s rather than fo r pay

ment of b enefits. The panel held that in lig ht of inconsistencies, conflicts, and g aps in the record that require further administrative p roceeding s, the panel w ould
not proceed to the question of whether the A L J w o u ld be required t o find claimant disabled if the treating phy sician’s inconsistent reports were credited as true.

COUNSEL

Eric G. Slepian, Phoenix , Ariz ona, for Plaintiff-Appellant.

J ohn S. L eonardo, U nited States Attorney and Michael J ohns, Assis tant United States Attorney
, Phoenix

, Ariz ona; L aura Ridg ell-B oltz (arg

ued), Special Assistant United Sta t e s Attorney
, and J ohn J ay L ee, Reg ional Chief Counsel, Reg ion

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.D O M I N G U E Z V

. C O L

V I N 3

VI I I
, Social Security Administration, Denver Colorado, fo r Defendant-Appellee.

ORDER

The op i n i o n filed December 14, 2015, and appearing at 808 F .3d 403, is hereby amended as follows:

On pag e 408, the last sentence of the last
parag raph b efore Section I I I o n that pag e should be deleted.

Petitions for rehearing or r ehe a ring en banc will not be entertained from this amendment.

OP INION

I KUTA, Circuit J udg e:

April Doming uez ’s second application for disab i l i ty benefits was d enied after an administrative law j u d ge ( AL J ) determined that she was n ot disabled. 1 After the g overnment conceded that the AL J made a leg al error when it r ejected the

1 D o m i n g u ez h as f

i led th ree ap p l icatio n s f

or d isab ility b en ef

its. A n A L J d en ied h er f

i rst ap p licatio n o n

March 6 , 2 0 09 ; th e reco rd is u n clear as to th e claim ed d isab ility o n s et d ate. A n A L J d en ied h er seco n d ap p licatio n (th e o n e b ef

o re u s o n ap peal) o n

Feb ru ary 2
, 2 0 11
, an

ap p licatio n

w h ich claim ed an am en d ed d isab ility o n set d ate o f M a r c h 1
, 2 0 06

. A n A L J
g ran ted h er th ird ap p licatio n f o r b en ef its, w h ich claim ed a d i s ab ility o n set d ate o f Feb ru ary 2
, 2 0 1 1
, o n A p ril 2 5
, 2 01 4

. Neith er th e f irst n o r th ird
ap p licatio n

f o r b en ef its is b ef o re u s h ere.D O M I N G U E Z V

. C O L

V I N 4

opinions of Doming ue z ’ s treating phy sician without g iving sufficient reasons, the district court ex e rcised its discretion to remand the case t o the AL J for further proceeding s. On appeal, Doming uez arg ues tha t t h e district court abused its dis c retion in not remanding with instructions to award benefits. W e reject Doming uez ’ s arg ument and therefore affirm.

I

On J une 1 5, 2009, Doming uez submitted a claim under Title XVI of the Social Security Act, 42 U .S.C. §§ 1381–1383f, which provides fo r the pay ment of benefits
to individua l s w h o are disabled, as defined in the Act. See 42 U.S.C. § 1382c(a)(3). D o m i ng uez c laimed that she was disabled as a result of a number of illnesses, including panic disorder w ith ag oraphobia, morbid ob e s ity

, g a stroparesis, back pain, carpal tunnel sy ndrome, and dementia.

I n o rder to determine whether a n applicant is disabled, an A L J must follow a five-step process. See 20 C.F

. R

. § 416.920. F irst, the AL J must dete r m i n e : (1) whether the claimant did not perform su b stantial g ainful activity during the period of claimed disability

, id. § 416

. 9 2 0(a)(4)(i); (2) whether the claimant had an impairment, or a combination of impairments that is “severe,” id. § 416.92 0 ( a )(4)(ii),

m e aning that it sig nificantly limits the c laimant’s “phy sic al

or mental ability to do b asic w ork act i v i t i e s,” id. § 416.920(c); and (3) whether any severe impairm ent meets

or equals the severity of one of the i m p a i r m e n ts listed in an appendix to the reg ulations, as well as meeting t h e d u r ation requirement, id. § 416.920(d)–(e); 20 C.F

. R

. pt. 4 04, subpt. P, App. 1. I f the claimant satisfies these three steps, then the claimant is disabled and entitled t o benefits. I f the claimantD O M I N G U E Z V

. C O L

V I N 5

has a s e vere impairment that d oes not meet or equal the severity o f one of the a ilments listed in the appendix

, the AL J then proceeds to s t ep four, w hich r equires the AL J to determine the claimant’s residual functioning c apa c i ty (RF C) b ased on all the rele vant evidence in the record, including i m p a irments not classified as “severe.” Id. § 416.920(a)(4)(iv); id. § 4 16.920(e); id. § 416.945(a). The RF C is d efined as “the most” the claimant can do, despite any limitations. Id

. § 416.945(a). After developing the RF C, the AL J must det er m ine whether the claimant can perform past relevant wo r k

. I

d

. § 416.920(a)(4)(iv). I f not, then at step five, t he g overnment has the burden of showing that the claimant could perform other work ex isting in sig nificant numbers in the national economy g iven the claimant’s RF C,
ag e, education, and work ex perience. Id. § 416.920(a)(4)(v); Swenson v. Sullivan

, 876 F .2d 683, 687 (9th Cir. 19 89); see also Molina v. Astrue , 674 F .3d 1104, 1110 (9th Cir. 2012).

F ollowing these steps, the AL J first determined that Doming uez had not eng ag ed in substantia l g ainful activity since J une 1 5, 2009. He nex t determined that Doming uez ’s carpal tunnel sy

n drome and o b esity constituted severe impairments f

or purposes of 2 0 C.F .R. § 416.920(c), but that they did not , s i n g ly or in c ombination, meet a listing

. Reviewing all the evidence in the record, the AL J determined that Doming uez had the RF C to perfor m lig ht work, a s defined in 20 C.F .R. § 416.967(b), but cou l d only occasionally “h a n d l e, fing er a nd f eel.” I n developing this RF C, the AL J held that Doming uez ’s medically determinable impairments could cause the sy mptoms she alleg ed, but her
statements r eg arding the “inten s i t y , persistence and limiting effects” o f the sy

mptoms were not credible to the ex tent they were inconsistent with the RF C.D O M I N G U E Z V

. C O L

V I N 6

The AL J ex plained his adverse credibility determination and his a s s essment of Doming uez ’s RF C in some d etail. W ith respect to the ca r

p a l tunnel sy

ndrome, the AL J noted that in 2007, Doming uez received i n j ections, which, according to the doctors’ r e p o rts, alleviated her sy mptoms. I n J une 2009, she was referred to a hand surg eon for a carpal tunnel evaluation, b u t s h e did n ot follow up on the appointment. Nor did she o b t ain phy sical therapy for the
sy ndrome. An ex amining p h y sician, Dr. Stephanie J enkinson, stated that any nu m b ness could be easily fix ed with surg ery

.

Nex t, the AL J n oted t h e r e was little evidence related to the claim a n t’s treatment for obesity

. The AL J also discounted the claims of g astroparesis, noting (among o t her thing s) that a recent MRI showed no abnormalities.

Turning to her claims of panic disorder and ag oraphobia, the AL J noted that Doming uez h ad never been hospitaliz ed for these c onditions, medical reports s h o w e d that she had a g ood mental status, she g o t along socially

, and psy cholog ical
tests “sug g est[ ed] some o ver-reporting of s y m p toms.” The AL J also noted that her ac t i v i ties of daily living

, including taking care of two children adopted in 2009, showed she was able to function.

W ith respect to her musculoskeletal disorders, th e AL J

as s i gn e d little weig ht to the opinions of her treating phy sician, Dr. Rajesh B hakta, stating only that they “are inconsistent with the overall medical evidence.” The AL J noted the opinion of Dr. Stephanie J enkinson, an ex amining phy sician, that the claimant’s impairment would not impose
any limitations for the r elevant duration period. B ut the AL J
g ave this o pinion little w eig ht because the “medical evidenceD O M I N G U E Z V

. C O L

V I N 7

indicates that the c l a imant has some severe impairments.” The AL J assig n ed substantial weig ht to the opinion of another

ex a mining phy sic i a n , Dr. J ohn Prieve, who stated that Doming uez was capable of a reduced rang e of lig ht work.

I n lig ht o f his determination o f Doming uez ’ s RF C, the AL J concluded that D oming uez could n o t p erform her past relevant w ork as a certified nursing assistant. Moving to the fifth step in the sequence, the AL J considered testimony of a vocational ex pert reg arding work a vailable for a person with Doming uez ’s RF C. The AL J determined that Doming uez coul d p erform jobs that ex ist in sig nificant numbers in the national economy , 2 0 C .F .R. § 416.969, including a “full
array of unskilled lig ht or s ed entary jobs” such a s first aid attendant, lig h t office hel p e r , o rder caller, o r marker. According ly

, the AL J denied Doming uez ’s application for disability benefits.

Doming uez appealed, and in the distri c t court, the
g overnment conceded that the AL J had er r e d in discounting the opinion of Dr. B hakta, who was Doming uez ’s treat i n g phy sician, w ithout articulating sufficient reaso n s for doing so. Under our precedent, if a treating doctor' s opinion is contradicted by other medical evidence in the record, the AL J
may reject this o pinion only by “ providing specific a nd leg itimate reasons supported by substantial evidence.” Bayliss v. Barnhart

, 427 F .3d 1211, 1 216 (9th C i r

. 2 0 0 5). Here the AL J did not p rovide such r easons, and so committed a leg al error.

I n lig h t o f this er r o r , D oming uez moved for the district
court to remand for an immediate c o mputation and award o f benefits. The court rejected this mo t i o n , and instead remande d the case to the A L J for f u rther proceeding s toD O M I N G U E Z V

. C O L

V I N 8

d e termine whether Doming uez was entitled to benefit s

. Doming uez timely

appealed the court’s order.

I I

The o n ly i s s u e o n appeal is whether the district court abused its discretion in remanding for further proc e eding s instead of remanding for be n e f i ts. W e briefly review the leg al framework for analy zing this issue.

A district court may “r evers[ e] the decision of the Commissioner of Social Security

, with or without remanding the cause f

or a r e h e a r i n g,” Treichler v

. Comm’r of Soc. Sec. Admin.

, 7 7 5 F. 3 d 1090, 1 099 (9th Cir. 2014) (citing 42 U.S.C. § 405(g )) ( a lteration in orig inal), but “the proper course, ex cept in r are circumstance s, is to remand to the
ag ency f o r a dditional investig ati o n or ex planation,” id. (quoting Fla. Power & Light Co. v. Lorion
, 470 U.S. 729, 744 ( 1985)). Our case law precludes a district cou r t f r o m remanding a case for an award o f benefits u n l e s s c ertain prerequisites a

re met. B urrell v. Colvin

, 775 F .3d 1 133, 1141 (9th Cir. 2014) (discussing Garrison v. Colvin

, 759 F .3d 995 (9th Cir. 2014)). The district court must first determine that the AL J made a leg al error, such as failing to provide leg ally sufficient r e asons for r ejecting evidence. Id. I f the court finds such an error, it must nex t review the record as a whole and determine whether it is fully d eveloped, i s f r e e from

co n f l i c ts and ambig u ities, a

nd “all essential factual issues have been resolved.” Treichler

, 775 F

. 3 d at 1101. I n conducting this review, the district court must consider whethe r t here are “inconsistencies between [ the claimant’s] testimony and the medical evidence in the record,” i d

. at 1105, o r whether the g overnment has pointed to evidence in the record “that the AL J overlooked” and ex plained “how thatD O M I N G U E Z V

. C O L

V I N 9

evidence casts into serious doubt” the claimant’s claim to be disabled, Burrell

, 775 F .3d at 1141. Unless the district court

c o n c l u d e s that further administrative procee d i n g s w o u l d s e r v e

n o u seful purpose, it may not remand with a direct i o n t o provide benefits. I

d.

I f the district court does d et e rm ine that the “record has been fully developed,” id.

, and there are no outstanding issues left to be resolved, the district c ourt must nex t c o n s i der whether “the AL J would be required to find the c laim ant disabled on remand” if the “improperly discredited evidence

were c r e d i t e d as true.” Id. (quoting Garrison
, 759 F .3d at 1020). Said othe r w ise, the district court must consider the testimony o r opinion that the AL J improperly rejected, in the
contex t of the otherwise undispute d r e c ord, and determine whether the AL J would n ecessarily h ave to conclude that the claimant were disabled if that te stimony or opinion were deemed true. I f so, the district co u r t m ay ex ercise its discretion to remand the case for an award of benefits. Id. A district c ourt is g enerally n ot r equire d to ex ercise such discretion, however. See Connett v. B a rnhart

, 340 F .3d 871, 87 4

– 7 6 ( 9 th Cir. 2003); H arman v. A

pfel

, 211 F .3d 1172, 1178 (9th Cir. 2000). Distric t c o u r ts “retain ‘flex ibility ’ in determining the appropriate remedy

, ” B urrel l

, 775 F .3d at 1141 (quoting Garrison
, 7 59 F

. 3 d at 1021), a nd “a reviewing
court is not required to c redit claimants’ a lleg ations reg arding the ex tent of their impairments a s true merely because the AL J made a l e ga l error in d iscrediting their testimony

. ” Treichler

, 775 F .3d at 1 106. “I n particular, we may remand

on an open record f

or further proceeding s ‘when the record a s

a whole c reates serious doubt as to whether the claimant is, in fact, d isabled within t h e meaning of the Social Security Act.’” Burrell

, 775 F .3d at 1141 (quoting Garrison
, 759 F .3d at 1021); see also Connett
, 340 F .3d at 8 74–76 ( finding thatD O M I N G U E Z V

. C O L

V I N 10

a reviewing court retains discretion to remand for furthe r proceeding s even when the AL J f ails to “assert specific facts or reasons to reject [ the claimant] ’s testimony ” ).

I I I

W e now apply these principles to determine whether the district court abused its discretion in remanding this case for further proceeding s. The threshold requirement, that the AL J made a legal error in f

ailing to provide leg ally sufficient

reasons for rejecting evidence, is m et, because it is undispu t e d that the A L J erred in rejecting Dr. B hakta’s opinions.

W e nex t turn to the question whether the record has been fu l l y developed and further administrative proceeding s would

serve no useful purpose. Burrell

, 7 7 5 F .3d at 1141

. W e beg in by considering D r. B hakta’s medical reports, which the AL J erred in discrediting

.

The r e cord includes D r

. B hakta’s treatment notes from 2009 and 2010. On April 17, 2009, Dr. B hakta’s notes state that Doming uez reported “[ n] o joint pain, swelling

, injury

, o r limitation of motion. No muscle weakness, p a i n, cramps.” The doctor’s obse r vations in the notes state, “no joint inflamation

, good muscle tone.” A check-the-box form
prepare d b y Dr. B h akta on the same d a te, April 17, 2009, stated that Doming uez c ould n ot bend, crawl, climb, stoop, o r balance, and could only

occasionally use her hands and feet. On October 19, 2009, Doming uez r eported th a t she had no joint pain, swell i n g, injury

, o r limitation of motion, and Dr. B hakta’s notes confirmed that there was no joint inflammation a

nd g ood muscle tone, a

nd that he encourag ed her to ex ercise 30 minutes five times a week. B ut the check-D O M I N G U E Z V

. C O L

V I N 11

the-box form prepared on the same date stated that Doming uez could not use either of her feet, a l t h o u g h she could occasionally b end, crawl, climb, balance, or crouch. A
y ear later, on October 21, 2 010, the treatment notes stated
t hat D oming u ez was ex periencing no joint pain, swelli n g, injury or limitation of motion, and no muscle weakness, pain,

or c r amps, which was confirmed by the doctor’s o bservations, which found n o joint inflammation and g ood m u s cle tone. B ut the f inal check-the-box form in the record, dated October 21, 2 010, states that Doming uez can us e her hands only occasionally

and use her feet frequently

.

Dr. B hakta’s opinions, however, conflict in some respects with his treatment notes. W hile D r. B h akta’s treatment notes consistently indica t e that Doming uez had no (or minor) limitations of motion or pain, h is check-the-box forms show variously that Doming uez could on l y occasionally use her hands and feet (in April 2009), could not use either o f h er feet
at all (in October 2009), and could use her feet frequently but her h ands only occasionally ( in October 2010). These inconsistencies raise sig nificant questi ons reg arding the

ex tent of Doming uez ’s impairments.

F urther, to the e x tent D r. B hakta’s c heck-the-box opinions described sig ni f icant musculoskeletal limitations, they are inconsistent with the r eports of other phy sicians. I n J une 2009, Tharesh Udupa, a doctor of podiatri c medicine, noted Doming uez ’s self-report that she had “[ n] o p hy sical disability a n d activities of d aily living were normal,” a nd diag nosed only ing rown nails and plantar fasciiti s , to be treated by removing the nails; D r. Udupa recommended treating the f

o o t pain with stretching

, ice, and p ain

me d i c ation. I n F ebruary 2 0 10, Dr. Stephanie J enkinson, M.D., ex amined D oming uez for back pain, leg pain, and handD O M I N G U E Z V

. C O L

V I N 12

numbness, and found her rang e of motion w ithin n orm al limits. A lthoug h Doming uez display e d o nly a 40 deg r ee rang e of motion in the lumbar r eg ion during the ex am, Dr. J enkinson observed Doming uez flex ing in the lumbar reg ion “well o ver 9 0 deg rees” to f i x her jeans. Dr. J enkinson concluded t hat Doming uez had no limitations other than working at any heigh t s d u e to her obesity

. The r ecord also contains reports f

rom two non-ex a mining phy sicians, Dr. Roy B rown, M.D., a

nd Dr. J ames Hopkins, M.D. B o th concluded that Doming uez could stand fo r six hours in an eig h t hour workday

, and had no sig nificant limitations preventing her from employ

ment.

Doming uez ar gues that because the AL J made a leg al

error in rejecting Dr. B hakta’s opinion, the district court should c redit Dr. B hakta’s opinions reg arding the e x t e n t o f her lim i t a tions as true. I f these opinions were deemed true, Doming uez claims, the AL J would have been r equired to find her disabled. B ut this reverses the required order o f analy sis. As we have previously ex plained, the district c ourt must “assess w h e ther there are outstanding issues requiring resolution bef

o r e considering whether to hold that the claimant' s testimony is credible as a m a t t er of law.” Treichler

, 775 F .3d at 1105

. I f such outstanding issues do

ex i s t , the district court cannot deem the erroneously disr e g a rded testimony to be true; rather, the court must remand for further p roceeding s. Id. at 1105–06. Here, there

are multiple inconsistencies that p reclude the distr i c t court from moving on to the nex t step.

F inally

, Doming uez contend s that other phy sical a nd mental impairments identified in the medical record establish that she is disabled. B ut it is up to the AL J , not the court, to determine how these impairments affect the formulatio n o fD O M I N G U E Z V

. C O L

V I N 13

D oming u ez ’s RF C. See 20 C.F .R. § 416.927(d)(2) ( p rovidin g that the f inal r esponsibility for deciding RF C is re s erved to the Commissioner). Moreover, Doming uez ’s c l a i ms a re undercut by the A L J ’s adverse credibility d etermin a t ion, which was supported by evidence of skepticism on the part o f her phy sicians about her claims of limitations as we l l a s b y inconsistent reports from Doming uez h e r s elf. The AL J ’s well-supported credibility concerns raise a dditional f actual issues that require resolution.

There is y et another factual issue outstanding

. The record is unclear as to the disability onset date of Doming uez ’s first

a p p l i cation. I n her second a pplication for benefits, Doming uez c l a imed an amended disability onset date o f March 1, 2006, and a s k ed the AL J to reopen the first application. B ecause the AL J determined that Doming uez

was not disabled, he did not address this motion or determine whether Doming uez had an earlier disa b i l i t y onset date. W h en further proceeding s are necessary to d e t ermine the
onset date, it is appropriate to remand for those proceeding s. See Luna v. Astrue , 623 F .3d 1032, 1035 (9th Cir. 2010).

I n lig ht o f the inconsistencie s , conflicts, and g aps in the record that require further administrative proceeding s, w e do
not p roceed to the nex t question, whether the AL J w o uld be required to f

ind Doming u ez d isabled if Dr. B hakta’s inconsistent reports were credited a s true. See Burrell

, 775 F

. 3d at 1141 (discussing Garrison
, 7 5 9 F .3d at 1020–21). I nstead, we c o n clude that the district court did not err in

re m a n d ing this case to the AL J for further f actual proceeding s, rather than for pay ment of benefits.

AF F IRMED

.