                                                                           FILED
                           NOT FOR PUBLICATION                              APR 21 2010

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




                            FOR THE NINTH CIRCUIT



DEBORAH MONAN,                                   No. 09-15894

             Plaintiff - Appellant,              D.C. No. 2:08-cv-00223-HRH

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

             Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Arizona
                    H. Russel Holland, District Judge, Presiding

                            Submitted April 16, 2009 **
                             San Francisco, California

Before: ARCHER, *** CALLAHAN, and BEA, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

       ***   The Honorable Glenn L. Archer, Jr., Senior United States Circuit
Judge for the Federal Circuit, sitting by designation.
      Deborah Monan (“Monan”) appeals the district court’s judgment remanding

her claim for disability and supplemental social security benefits for further

proceedings. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.1

      In granting Monan’s motion for summary judgment, the district court

concluded that the administrative law judge (“ALJ”) had erred by improperly

rejecting the opinions of Dr. Belmonte and Dr. Tromp. The court then concluded

that the case was to be remanded for further proceedings. Monan challenges this

determination on the ground that the proper course of action is to remand for

payment of benefits.

      We have set forth the following test for determining when evidence should

be credited and an immediate award of benefits directed:

      “(1) the ALJ has failed to provide legally sufficient reasons for rejecting
      such evidence, (2) there are no outstanding issues 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
      such evidence credited.”

Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000) (quoting Smolen v. Chater,

80 F.3d 1273, 1292 (9th Cir. 1996)). We review the district court's decision to

remand a case to the Commissioner for an abuse of discretion. Id. at 1173.



      1
         The parties are familiar with the facts of the case, so we repeat them here
only to the extent necessary to explain our decision.

                                          2
      Even assuming that a finding of “disabled” were clear based on the opinions

of Dr. Belmonte and Dr. Tromp, a remand would still be necessary in this case

because the ALJ did not perform a proper drug and alcohol analysis (“DAA

Analysis”).

      “‘A finding of “disabled” under the five-step inquiry does not automatically

qualify a claimant for disability benefits.’” Parra v. Astrue, 481 F.3d 742, 746 (9th

Cir. 2007) (quoting Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001)).

“Under 42 U.S.C. § 423(d)(2)(C), a claimant cannot receive disability benefits ‘if

alcoholism or drug addiction would . . . be a contributing factor material to the

Commissioner’s determination that the individual is disabled.’” Id. “Under the

implementing regulations, the ALJ must conduct a drug abuse and alcoholism analysis

(“DAA Analysis”) by determining which of the claimant’s disabling limitations would

remain if the claimant stopped using drugs or alcohol.” Id. at 747. The DAA

analysis must be performed after the ALJ has made the five-step disability

determination. See id. In the present case, there was no determination of “disabled.”

Thus, while the ALJ discussed Monan’s drug use, he could not have performed the

mandated DAA absent a disability determination.

      Additionally, it is possible that the ALJ did have legally sufficient, albeit

unarticulated, reasons as to why he rejected the opinions of Dr. Belmonte and Dr.


                                         3
Tromp that he could explain on remand. Cf. Salvador v. Sullivan, 917 F.2d 13, 15

(9th Cir. 1990).

      Because there is at least one outstanding issue that must be resolved before an

award of disability benefits can be made, the district court properly remanded

Monan’s case for further proceedings.2

AFFIRMED.




      2
          The Commissioner's motion to strike is denied.

                                          4
