                                                                            FILED
                           NOT FOR PUBLICATION                              NOV 17 2009

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




                            FOR THE NINTH CIRCUIT



MARTHA L. WOODY,                                 No. 08-16918

             Plaintiff - Appellant,              D.C. No. 2:07-cv-02164-DGC

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

             Defendant - Appellee.



                   Appeal from the United States District Court
                            for the District of Arizona
                   David G. Campbell, District Judge, Presiding

                     Argued and Submitted November 5, 2009
                            San Francisco, California

Before: B. FLETCHER, CANBY and GRABER, Circuit Judges.

       Plaintiff-Appellant Martha L. Woody appeals the decision of the district

court remanding her Social Security disability insurance benefits claim for further

proceedings before the administrative law judge (“ALJ”) rather than for a

determination of benefits. This court has jurisdiction over the appeal under 28


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
U.S.C. § 1291. We reverse and remand to the district court with instructions to

remand to the Commissioner for an award of benefits.

      The ALJ determined that, in combination, Woody’s fibromyalgia, migraine

headaches, diabetes mellitus, insulin dependence, right shoulder injury, right knee

surgery, and back and neck pain along with cervical spondylosis amounted to a

severe impairment. Nonetheless, the ALJ found Woody’s testimony regarding her

pain and symptoms not fully credible, even though her impairments could be

expected to produce at least some of the alleged symptoms. The ALJ then made a

residual functional capacity (“RFC”) determination, finding jobs in which Woody

could work despite her limitations.

      As the district court found and both parties agreed, the ALJ committed legal

error by rejecting Woody’s pain testimony without identifying specific reasons

supporting an adverse credibility finding. Lingenfelter v. Astrue, 504 F.3d 1028,

1035-36 (9th Cir. 2007). The district court remanded the case for further

proceedings, directing the ALJ to evaluate the duration of Woody’s disabling

conditions and to conduct another RFC evaluation, this time including all of the

relevant factors.

      The decision whether to remand for further proceedings or for an immediate

payment of benefits is reviewed for abuse of discretion. Benecke v. Barnhart, 379


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F.3d 587, 590 (9th Cir. 2004). Evidence should be credited as true and an action

remanded for an award of benefits when: (1) the ALJ has failed to provide legally

sufficient reasons for rejecting evidence; (2) no outstanding issues remain that

must be resolved before a determination of disability can be made; and (3) it is

clear from the record that the ALJ would be required to find the claimant disabled

were the rejected evidence credited as true. Id. at 593; Harman v. Apfel, 211 F.3d

1172, 1178 (9th Cir. 2000).

      After applying the credit-as-true rule to Woody’s improperly discredited

pain testimony, no outstanding issues remain to be resolved before determining

that Woody is entitled to benefits. The ALJ added facts mirroring the discredited

testimony to the hypothetical posed to the vocational expert (“VE”) when

evaluating RFC. The VE responded that such a person would not be able to work.

Furthermore, the ALJ already had determined that Woody met the duration

requirement. As it is clear the ALJ would be required to find Woody disabled, see

Benecke, 379 F.3d at 593-95, the district court abused its discretion in remanding

for further proceedings rather than for an award of benefits.

      REVERSED and REMANDED with instructions to remand to the

Commissioner of Social Security for an award of benefits.




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