Michelle Brandon v. Andrew Saul ( 2020 )

FILED
NOT FOR PUBLICATION
SEP 15 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHELLE BRANDON, No. 18-55890
Plaintiff-Appellant, D.C. No. 2:17-cv-07420-KK
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Kenly Kiya Kato, Magistrate Judge, Presiding
Submitted September 11, 2020**
San Francisco, California
Before: GRABER, BYBEE, and N.R. SMITH, Circuit Judges.
Michelle Brandon appeals the district court's judgment remanding the
administrative law judge’s (ALJ) decision for further proceedings rather than an
immediate award of benefits. We have jurisdiction pursuant to 42 U.S.C. § 405(g)
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
and review the district court's decision to remand for further proceedings for abuse
of discretion, Harman v. Apfel, 211 F.3d 1172, 1173 (9th Cir. 2000). We affirm.
The district court did not abuse its discretion when it remanded for further
administrative proceedings because outstanding issues remain in the record
regarding consultative examiner Dr. Michael Kushner's opinion. See Dominguez v.
Colvin, 808 F.3d 403, 408–10 (9th Cir. 2015) (affirming district court’s remand for
further proceedings rather than an immediate award of benefits where outstanding
issues, including conflicts between the erroneously rejected opinion and other
record evidence, remain unresolved); Treichler v. Comm’r Soc. Sec. Admin., 775
F.3d 1090, 1104–05 (9th Cir. 2014) (affirming district court’s remand for further
proceedings where conflicts and ambiguities between the erroneously rejected
testimony and other record evidence were unresolved). The district court found
(1) that Dr. Kushner’s erroneously discounted opinion was consistent, rather than
inconsistent, with the treatment record and Brandon’s GAF scores, and (2) that it
was not clear from the record whether the ALJ would be required to find Brandon
disabled once this evidence was properly evaluated, in part because no vocational
expert testified. The district court properly concluded that remand was warranted
for the ALJ to “reassess the evidence and provide sufficient reasons supported by
the record” for rejecting Dr. Kushner's opinion.
2
AFFIRMED.
3