                                                                          FILED
                            NOT FOR PUBLICATION                            DEC 01 2011

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




                            FOR THE NINTH CIRCUIT



RUDY ROJAS,                                     No. 10-17086

              Plaintiff - Appellant,            D.C. No. 1:09-cv-00725-SKO

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

              Defendant - Appellee.



                   Appeal from the United States District Court
                        for the Eastern District of California
                   Sheila K. Oberto, Magistrate Judge, Presiding

                     Argued and Submitted November 17, 2011
                             San Francisco, California

Before: HAWKINS, McKEOWN, and M. SMITH, Circuit Judges.

       Petitioner Rudy Rojas (“Rojas”) appeals the affirmance of the denial of Social

Security disability benefits based on an administrative law judge’s (“ALJ”) finding,

at Step Five of the five-step disability analysis prescribed in 20 C.F.R. § 404.1520,

that Rojas retained sufficient residual functional capacity (“RFC”) to work. We


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
review the district court’s decision de novo, and may set aside the denial of benefits

if the ALJ’s findings were based on legal error or were not supported by substantial

evidence. Schneider v. Comm’r of Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir.

2000).

         Rojas suffered from three severe medical impairments at the time of his

administrative hearing, and the ALJ explicitly noted as much at Step Two. One of

those impairments, a bone infection called osteomyelitis in Rojas’s right foot, was not

diagnosed until six months before the hearing and led to the amputation of a

significant part of Rojas’s foot only a month before the hearing.

         The only medical evidence supporting the conclusion that Rojas was capable

of performing jobs available in significant numbers came in the form of opinions from

government physicians issued before Rojas developed osteomyelitis and his

subsequent amputation. Because the RFC inquiry required the ALJ to consider “all

medically determinable impairments” of which he was aware, 20 C.F.R.

§ 404.1545(a)(2), these opinions did not, without more, provide substantial

evidence—more precisely, “such relevant evidence as a reasonable mind might accept

as adequate”—to support the ALJ’s Step Five conclusion. Webb v. Barnhart, 433

F.3d 683, 686 (9th Cir. 2005). Although the ALJ attempted to make up for this

evidentiary void by asking the testifying vocational expert to assume Rojas could not


                                          2
operate foot controls, fairness required additional medical evidence regarding whether

and to what extent Rojas’s osteomyelitis and amputation might have further reduced

his ability to sit and other factors relevant to the RFC analysis.

      We reverse the district court’s decision with instructions to remand the case to

the ALJ for further proceedings that consider Rojas’s current medical circumstances,

including the effect of his amputation on his RFC.

      REVERSED and REMANDED.




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