                                                                                FILED
                           NOT FOR PUBLICATION                                  OCT 02 2013

                    UNITED STATES COURT OF APPEALS                           MOLLY C. DWYER, CLERK
                                                                              U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


CHARLES BUCK,                                               No. 12-35032

              Plaintiff-Appellant,                  D.C. No. 2:10-cv-03045-LRS

       v.                                                MEMORANDUM**

CAROLYN W. COLVIN*,

              Defendant-Appellee.


                    Appeal from the United States District Court
                      for the Eastern District of Washington
                     Lonny R. Suko, District Judge, Presiding

                   Argued and Submitted Thursday, May 9, 2013
                               Seattle, Washington

Before: THOMAS and NGUYEN, Circuit Judges, and DEARIE, Senior District
Judge.***




      *
              Carolyn W. Colvin, Acting Commissioner of Social Security, is
substituted for her predecessor, Michael J. Astrue, Commissioner of Social
Security, pursuant to Fed. R. App. P. 43(c)(2).
       **
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      ***
             The Honorable Raymond J. Dearie, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
      Charles Buck appeals the district court’s decision affirming the

Commissioner’s denial of Social Security benefits. Because the Commissioner’s

decision is not supported by substantial evidence, we reverse and remand to the

district court with instructions to remand to the Administrative Law Judge (ALJ)

for payment of benefits.

      We review de novo a district court’s decision affirming the Commissioner’s

denial of Social Security benefits. Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir.

2012). The Commissioner’s decision may only be overturned if it is based on legal

error or is not supported by substantial evidence. Id. at 1158-59.

      Despite considerable and consistent evidence of emotional deficits caused by

Buck’s bipolar and personality disorders, the ALJ concluded that Buck could

return to a warehouse job that he held for no more than three months in 2005. The

ALJ reached this decision without any input from a medical expert and without

considering what the warehouse job entailed. Records from Buck’s three

therapists; his treating psychiatrist; a consultative psychiatrist; and his primary

treating source, Nurse Practitioner Lisa Vickers, show that Buck received

consistent diagnoses of bipolar disorder or major depressive disorder from 2006 to

2009. His three therapists assessed moderate to severe limitations on Buck’s daily

functioning. Moreover, Nurse Practitioner Vickers, who saw Buck at least

fourteen times during this period, prescribed a growing roster of medications as she
sought an elusive combination of drugs to treat Buck’s anxiety, insomnia,

depression, and bipolar disorder. Instead of accounting for this contradictory

record evidence, the ALJ ignored the opinions of Buck’s therapists and Vickers,

selectively citing to temporary improvements in Buck’s functioning. Given the

episodic nature of bipolar disorder, short-lived improvements in functioning are

consistent with the diagnosis and cannot, by themselves, constitute substantial

evidence to override treating source opinions that Buck was significantly impaired.

See Taylor v. Comm’r of Soc. Sec., 659 F.3d 1228, 1234 (9th Cir. 2011)

(concluding that the ALJ erred in “hold[ing] against [claimant] two instances

where he was able to function, even though his alleged disability involves attacks

of muscle weakness . . . that come and go”); see also Agyeman v. I.N.S., 296 F.3d

871, 881 (9th Cir. 2002) (“Bipolar disorder is a severe psychiatric illness marked

by episodes of mania and depression, impairment of functioning—both cognitive

and behavioral, and is frequently complicated by psychotic symptoms (e.g.

delusions, hallucinations, and disorganized thinking).”) (emphasis added).

      “We may direct an award of benefits if the record has been fully developed

and further administrative proceedings would serve no useful purpose.”

McCartney v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). Because the ALJ

failed to provide legally sufficient reasons for rejecting Buck’s evidence, there are

no outstanding issues that require resolution, and the record makes clear that Buck
is disabled and entitled to benefits, see id. at 1076-77, we instruct the district court

to remand this matter to the ALJ for payment of benefits.

      REVERSED AND REMANDED.
