                                                                            FILED
                            NOT FOR PUBLICATION                              JUL 14 2011

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




                            FOR THE NINTH CIRCUIT



KELLY G. MELTON,                                  No. 10-35953

              Plaintiff - Appellant,              D.C. No. 3:09-cv-01000-BR

  v.
                                                  MEMORANDUM *
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,

              Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Oregon
                     Anna J. Brown, District Judge, Presiding

                             Submitted July 12, 2011 **
                                Portland, Oregon

Before: GOODWIN, PREGERSON, and M. SMITH, Circuit Judges.

       Plaintiff-Appellant Kelly Melton appeals the district court’s order remanding

her claim for disability and supplemental social security benefits for further

administrative proceedings. The district court found that the Administrative Law

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Judge (ALJ) had committed three errors and remanded Melton’s case for further

administrative proceedings. Melton argues that the district court erred when it

upheld the part of the ALJ’s decision that gave little weight to the opinions of three

treating physicians regarding Melton’s limitations,1 and that the district court

should have remanded the case for an immediate award of benefits.

      The parties are familiar with the facts, which we repeat here only to the

extent necessary to explain our decision. We have jurisdiction pursuant to 28

U.S.C. § 1291, and we affirm the district court’s decision to remand this case for

further proceedings.

      The opinions of treating physicians are given greater weight than those of

non-treating physicians. Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1222 (9th

Cir. 2010). Where there is conflicting medical evidence, the ALJ must state

“specific and legitimate reasons that are supported by substantial evidence” in the

record for rejecting a treating physician’s opinion. Ryan v. Comm’r of Soc. Sec.,

528 F.3d 1194, 1198 (9th Cir. 2008).




      1
        Melton did not “specifically and distinctly” argue in her opening brief that
the ALJ improperly rejected Dr. Anderson’s opinion. Thus, this issue is waived.
See Paladin Assocs., Inc. v. Mont. Power Co., 328 F.3d 1145, 1164 (9th Cir. 2003)
(noting that we “ordinarily will not consider matters on appeal that are not
specifically and distinctly argued in an appellant’s opening brief”).

                                           2
      Two of the ALJ’s reasons for discrediting Dr. Gibby-Smith’s opinion

regarding Melton’s “marked” limitations in a work environment are “specific and

legitimate reasons that are supported by substantial evidence” in the record. Id.

First, the ALJ correctly found that Gibby-Smith’s opinion was based almost

entirely on Melton’s self-reporting, which the ALJ found not fully credible, a

finding Melton does not challenge on appeal. See Tommasetti v. Astrue, 533 F.3d

1035, 1041 (9th Cir. 2008) (“An ALJ may reject a treating physician’s opinion if it

is based to a large extent on a claimant’s self-reports that have been properly

discounted as incredible.” (quotation marks and citation omitted) (emphasis

added)). Second, Dr. Gibby-Smith provided inconsistent answers on her

evaluation form. She gave Melton a GAF score of 55, which indicates “moderate”

difficulty in social, occupational, or school functioning. Am. Psychiatric Ass’n,

Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. 2000). On the

same form, Dr. Gibby-Smith indicated Melton had “marked” limitations in daily

activities and in maintaining social functioning, meaning more than moderate, but

less than extreme. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00C; 20 C.F.R. §

404.1520a. The ALJ reasonably relied upon this internal inconsistency for

discrediting Dr. Gibby-Smith’s opinion. See Bayliss v. Barnhart, 427 F.3d 1211,




                                          3
1216 (9th Cir. 2005) (finding that an ALJ may cite internal inconsistencies in

evaluating a physician’s opinion).

      The ALJ also correctly pointed to specific examples of contradictions in Dr.

Sultany’s own answers on an assessment form, and provided additional legitimate

reasons for questioning the reliability of Dr. Sultany’s responses on this form.

Accordingly, the ALJ properly rejected Dr. Sultany’s responses after stating

“specific and legitimate reasons that are supported by substantial evidence” in the

record. Ryan, 528 F.3d at 1198; see also Bayliss, 427 F.3d at 1216.

      Finally, the ALJ properly discredited Dr. Simon’s answers on the “Medical

Opinion Regarding Ability to Work” form because the form was unsigned and

contradicted Dr. Simon’s own treatment records. See id.

      Remand for further administrative proceedings is appropriate where there

are outstanding issues that must be resolved before a disability determination can

be made, and it is not clear from the record that the ALJ would be required to find

the claimant disabled if all the evidence were properly evaluated. See Vasquez v.

Astrue, 572 F.3d 586, 593 (9th Cir. 2009).

      Here, there are outstanding issues the ALJ must consider on remand before a

finding of disability can be made, including (1) determining what weight to afford

the lay witness testimony; (2) incorporating in Melton’s residual functional


                                          4
capacity her limitations in maintaining concentration, persistence, or pace; and (3)

posing an accurate hypothetical to the vocational expert. Because there are

“sufficient unanswered questions in the record,” the district court’s decision to

remand the case for further administrative proceedings was not an abuse of

discretion. Harman v. Apfel, 211 F.3d 1172, 1180 (9th Cir. 2000).

      AFFIRMED.




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