                                                                              FILED
                           NOT FOR PUBLICATION                                NOV 15 2013

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



                            FOR THE NINTH CIRCUIT


WAYNE KELLBERG,                                  No. 12-35765

              Plaintiff - Appellant,             D.C. No. 9:12 cv-0018 JCL

  v.
                                                 MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,

              Defendant - Appellee.


                    Appeal from the United States District Court
                            for the District of Montana
                  Jeremiah C. Lynch, Magistrate Judge, Presiding

                     Argued and Submitted October 10, 2013
                              Seattle, Washington

Before:       TASHIMA, GRABER, and MURGUIA, Circuit Judges.

       Wayne Kellberg appeals the district court’s judgment affirming the denial of

Kellberg’s application for supplemental security income (“SSI”) under Title XVI

of the Social Security Act. The administrative law judge (“ALJ”) found, applying

the five-step sequential evaluation process, 20 C.F.R. § 404.1520(a)–(g), that


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Kellberg was not disabled within the meaning of the Act, 42 U.S.C. § 1382c(a)(3),

because he retained the ability to perform a limited range of light work. We have

jurisdiction under 28 U.S.C. § 1291, and we reverse and remand.

      1.    Before Kellberg filed his SSI application, Dr. John Harrison evaluated

Kellberg and diagnosed him with a personality disorder and other mental

impairments including chronic pain syndrome, attention deficit hyperactivity

disorder, alcoholism, and a maladjusted personality profile. These diagnoses were

not contradicted by any other doctor. An ALJ may reject the uncontradicted

opinion of an examining physician only for clear and convincing reasons. Hill v.

Astrue, 698 F.3d 1153, 1159–60 (9th Cir. 2012). Likewise, an ALJ must consider

all the evidence of a claimant’s impairments when making a disability

determination. 42 U.S.C. § 423(d)(5)(B); 20 C.F.R. § 416.920(a)(3). The ALJ did

not provide clear and convincing reasons for rejecting Dr. Harrison’s diagnoses.

Nor did the ALJ mention Dr. Harrison’s uncontradicted diagnoses of Kellberg’s

other mental impairments at any step in the sequential evaluation process. The

ALJ had a duty to develop the record fully and fairly to determine whether and to

what extent Kellberg’s functioning was impaired. Smolen v. Chater, 80 F.3d 1273,

1288 (9th Cir. 1996). Having failed to develop the record to determine whether

Kellberg’s mental impairments were ongoing, the ALJ could not then reject Dr.


                                        -2-
Harrison’s uncontradicted diagnoses as unsupported by the record during the

relevant time period. To do so constituted reversible error. See Stout v. Comm’r,

Soc. Sec. Admin., 454 F.3d 1050, 1054–56 (9th Cir. 2006).

      2.     We conclude, contrary to Kellberg’s contention, that he is not entitled

to an immediate award of disability benefits. Because there are “outstanding issues

that must be resolved before a determination of disability can be made” and

because it is not “clear from the record that the ALJ would be required to find the

claimant disabled if he considered the claimant’s evidence,” a remand for the

award of benefits would be premature. McCartey v. Massanari, 298 F.3d 1072,

1076–77 (9th Cir. 2002).

      We therefore reverse the judgment of the district court and remand with

instructions to further remand the case to the agency for proceedings consistent

with this disposition.

      REVERSED and REMANDED.




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