                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 18 2011

                                                                        MOLLY C. DWYER, CLERK
                   UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                           FOR THE NINTH CIRCUIT



TEODOSO SERRANO MORENO,                          No. 09-56338

              Plaintiff - Appellant,             D.C. No. 3:08-cv-01022-WQH-
                                                 PCL
  v.

MICHAEL J. ASTRUE, officially, as                MEMORANDUM *
Commissioner of Social Security
Administration,

              Defendant - Appellee.



                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding

                      Argued and Submitted February 9, 2011
                               Pasadena, California

Before:       KOZINSKI, Chief Judge, HAWKINS and FISHER, Circuit Judges.

       Because Moreno’s sister’s lay testimony was relevant to the ALJ’s

determination of whether Moreno would be able to perform work in the national

economy, the ALJ erred in failing to provide specific reasons, germane to the



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                                 page 2

witness, for rejecting this testimony. See Bruce v. Astrue, 557 F.3d 1113, 1115–16

(9th Cir. 2009); Stout v. Comm’r, 454 F.3d 1050, 1053 (9th Cir. 2006). Passing

references to the sister’s testimony about Moreno’s general behavior did not

suffice. Because the ALJ’s decision was inconsistent with the sister’s testimony

with respect to how Moreno’s mental impairment might affect his ability to work,

specific examination of her testimony was required. See Stout, 454 F.3d at 1054.

This error was not harmless because, fully crediting the sister’s testimony, it is not

clear that no reasonable ALJ could have come to a different conclusion regarding

Moreno’s disability. See id. at 1056.

      We do not remand for the immediate award of benefits because there are

other outstanding issues—including whether Moreno failed to comply fully with

prescribed treatment without good reason, and whether full compliance would’ve

ameliorated his condition—that must be resolved before entitlement to benefits can

be established. See Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004); see

also 20 C.F.R. § 416.930(b); Gamble v. Chater, 68 F.3d 319, 322 (9th Cir. 1995).

On remand, the ALJ is free to reconsider the sister’s testimony; if she rejects it, she

should give specific reasons for doing so. See Dodrill v. Shalala, 12 F.3d 915, 919

(9th Cir. 1993).


      REMANDED.
