                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           MAY 19 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JEFFREY BELDEN HENDERSON,                        No.   15-16037

              Plaintiff-Appellant,               D.C. No. 2:13-cv-01830-MHB

 v.
                                                 MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,

              Defendant-Appellee.


                   Appeal from the United States District Court
                            for the District of Arizona
                  Michelle H. Burns, Magistrate Judge, Presiding

                             Submitted May 16, 2017**
                              San Francisco, California

Before: THOMAS, Chief Judge, WARDLAW, Circuit Judge, and MORRIS,***
District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Brian M. Morris, United States District Judge for the
District of Montana, sitting by designation.
      Jeffrey Henderson appeals the district court’s decision to remand the case to

the Commissioner of Social Security for further proceedings instead of for an

award of benefits. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

reverse. Because the parties are familiar with the history and facts of this case, we

need not recount them here.

      The district court abused its discretion when it remanded the case for further

proceedings to allow the administrative law judge (“ALJ”) to set forth sufficiently

clear explanations for his weighing of the medical source evidence and to support

his credibility assessment of Henderson.

      If a reviewing court concludes “that the agency erred in some respect in

reaching a decision to deny benefits, and the error was not harmless, sentence four

of [42 U.S.C.] § 405(g) authorizes the court to revers[e] the decision of the

Commissioner . . . with or without remanding the cause for a rehearing.” Treichler

v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (second

alteration in original) (citations and internal quotation marks omitted). Though

ordinarily “the proper course [of action] . . . is to remand to the agency for

additional investigation or explanation,” id. (quoting Fla. Power & Light Co. v.

Lorion, 470 U.S. 729, 744 (1985)), courts may “reverse or modify an

administrative decision without remanding the case for further proceedings” in


                                           2
“appropriate circumstances,” id. (quoting Harman v. Apfel, 211 F.3d 1172,

1177–78 (9th Cir. 2000)); 42 U.S.C. § 405(g). Generally, such “appropriate

circumstances” are “where no useful purpose would be served by further

administrative proceedings and the record has been thoroughly developed.” Id.

(quoting Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012)).

      We have established a “credit-as-true” rule to determine whether

“appropriate circumstances” exist. Under the “credit-as-true” rule, a court asks: (1)

whether the record has been fully developed such that further administrative

proceedings would serve no useful purpose; (2) whether the ALJ has failed to

provide legally sufficient reasons for rejecting evidence; and (3) whether, if the

improperly discredited evidence were credited as true, the ALJ would be required

to find the claimant disabled on remand. Garrison v. Colvin, 759 F.3d 995, 1020

(9th Cir. 2014).

      Henderson satisfies all three conditions. The record in this case includes

hundreds of pages of medical reports, Henderson’s testimony before the ALJ and

his responses to written questionnaires, the written testimony of two of his friends,

and an assessment of his capacity to do work completed by a treating physician.

There is also vocational expert testimony directly addressing whether an individual

with Henderson’s stated limitations would be able to sustain employment. Given


                                           3
this fully developed record, the admission of more evidence would not be

“enlightening,” Treichler, 775 F.3d at 1101, and “remand for the purpose of

allowing the ALJ to have a mulligan [does not qualify] as a remand for a ‘useful

purpose,’” Garrison, 759 F.3d at 1021.

      The Commissioner did not appeal the district court’s holding that the ALJ

erred in discounting Henderson’s credibility and the evaluations of his treating

physician. We agree that the ALJ failed to provide a legally sufficient reason to

reject Henderson’s testimony and the opinion of his treating physician.

      If the improperly discredited evidence were credited as true, the ALJ would

be required to find Henderson disabled on remand.1 The treating doctor deemed

Henderson disabled, Henderson testified to severe pain, and a vocational expert

explicitly testified that a person with the impairments described by Henderson

could not work. Such a finding by the vocational expert is a sufficient basis upon

which to remand for determination of benefits. Accordingly, Henderson satisfies

the requirements of the credit-as-true standard.




      1
           “At this stage of the credit-as-true analysis, [the court does] not consider
arguments against crediting evidence that the ALJ did not make. In other words
. . . [the court does] not consider ‘whether the ALJ might have articulated a
justification for rejecting [a medical] opinion.’” Garrison, 759 F.3d at 1022, n.29
(quoting Harman, 211 F.3d at 1179 (third alteration in original)).
                                            4
      The next question is whether we should nonetheless remand for further

proceedings. A review of the record as a whole indicates that there may be some

doubt that Henderson is disabled, but not “serious doubt.” Garrison, 759 F.3d at

1021. Notably, the evidence consists of the magnetic resonance imaging findings,

Henderson’s consistently high level of pain, the treating physician’s findings

regarding Henderson’s residual functional capacity and use of a wheelchair, and

the testimony regarding his limited daily activities. Because all the conditions of

the credit-as-true rule are met and there is no serious doubt regarding Henderson’s

disability, the district court abused its discretion when it did not remand for an

award of benefits. See id. at 1020 (stating that this court has, “in a number of

cases, stated or implied that it would be an abuse of discretion for a district court

not to remand for an award of benefits when all of these conditions are met”).

      Therefore, we must reverse the judgment of the district court and instruct it

to remand the case to the agency with an instruction to calculate and award

benefits.



REVERSED WITH INSTRUCTIONS TO REMAND FOR AN AWARD OF
BENEFITS.




                                           5
