                                                                           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                           NOT FOR PUBLICATION                              MAR 30 2010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.




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