                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 22 2010

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U.S . CO UR T OF AP PE A LS




                             FOR THE NINTH CIRCUIT



BOBBY J. PUGH,                                    No. 08-16288

               Plaintiff - Appellant,             D.C. No. 3:05-cv-04688-MMC
  v.

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

               Defendant - Appellee.

                     Appeal from the United States District Court
                        for the Northern District of California
                     Maxine M. Chesney, District Judge, Presiding

                       Argument and Submitted October 8, 2009
                             San Francisco, California

Before: WALLACE, THOMPSON and THOMAS, Circuit Judges.

         Pugh appeals from the district court's summary judgment in favor of the

Commissioner of Social Security's denial of Pugh's application for disability

benefits under Title II of the Social Security Act. We review the district court's

summary judgment de novo. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.

2005).


          *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         Pugh argues that the district court erred in failing to review de novo the final

ALJ decision and in failing to address all of the issues raised by Pugh.

         In its 2004 opinion, the district judge remanded to the Commissioner of

Social Security to correct two errors: the Administrative Law Judge (ALJ) 'did not

set forth specific and legitimate reasons for rejecting the opinion of Dr. Filgas' and

the ALJ did not develop the record in that the ALJ should have secured any recent

records not before the ALJ. The court directed that these deficiencies can be

corrected by a remand. The remand to the Commissioner allowed 'further

proceedings consistent with this order' which meant proceedings leading to a

statement of rejection reasons and any recent records.

         The ALJ's 2005 order on remand identifies the reasons for rejection, which

the district court accepted, and states that '[u]pdated medical evidence was

received and added to the record' and discusses that evidence. The procedural

errors having been corrected, the district court entered judgment for the

Commissioner.

         The district judge acµnowledged that the ALJ went further than the court's

directions specified in the remand, but held any error would be harmless. We

agree.

         AFFIRMED.


                                            -2-
                                                                            FILED
Pugh v. Astrue, No. 08-16288                                                 JAN 22 2010

                                                                        MOLLY C. DWYER, CLERK
THOMAS, Circuit Judge, dissenting:                                        U.S . CO UR T OF AP PE A LS




      Because I believe the district court erred in failing to conduct a full de novo

review of the final administrative law judge ('ALJ') decision, I respectfully

dissent.

      Judicial review of a Social Security decision is 'necessarily limited to the

final decision of the [Commissioner].' See Flaten v. Health and Human Servs., 44

F.3d 1453, 1457 (9th Cir. 1995) (emphasis added). Here, the district court

remanded the case to the Commissioner for the purpose of more fully developing

the evidentiary record. On remand, the ALJ admitted new evidence into the record

and issued an entirely new decision. Under these circumstances, the district court

was required to review the ALJ's final decision. See id. Because the district court

relied on the earlier hearing and did not conduct a full de novo review of the ALJ's

final decision, I would remand the case to the district court.
