Scott McGary v. Michael Astrue

MEMORANDUM ** Plaintiff-Appellant Scott McGary appeals the district court’s decision to remand his claim for disability insurance benefits for further administrative proceedings rather than for immediate payment 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. McGary argues that the credit-as-true rule applies to his case and that we should remand with instructions for an immediate award of benefits. See Smolen v. Chater, 80 F.3d 1278, 1292 (9th Cir. *339 1996). But the Administrative Law Judge (ALJ) in McGary’s case erred in assessing McGary’s residual functional capacity, which led to additional errors in determining McGary’s ability to perform other jobs which exist in significant numbers in the national economy. The parties do not argue that the ALJ improperly discredited certain evidence, which is the type of error in which a credit-as-true analysis would apply. See e.g., id. (remanding for an award of benefits when the ALJ improperly rejected the physicians’ opinions, plaintiffs own symptom testimony, and lay witnesses testimony, and it was clear that a finding of disability was required after properly crediting this evidence as true). Accordingly, the credit-as true rule does not apply to McGary’s case. Moreover, 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). There are still outstanding issues in McGary’s case regarding his residual functional capacity and the jobs he might be capable of performing given his manipulative limitations. Thus, 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. Footnotes [**] This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.