Billy Southern, Jr. v. Kilolo Kijakazi ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 5 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BILLY G. SOUTHERN, Jr., No. 21-16417
Plaintiff-Appellant, D.C. No. 2:20-cv-01030-DJH
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Diane J. Humetewa, District Judge, Presiding
Submitted June 26, 2023**
Before: CANBY, S.R. THOMAS, and CHRISTEN, Circuit Judges.
Billy G. Southern, Jr., appeals from the district court’s judgment vacating
the Commissioner of Social Security’s denial of Southern’s application for
disability insurance benefits and supplemental security income under Titles II and
XVI of the Social Security Act and remanding to the agency for further
*
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).
proceedings. We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C.
§ 405(g). We review for an abuse of discretion the district court’s decision to
remand for further proceedings. Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir.
2017). We affirm.
The district court did not abuse its discretion in remanding for further
proceedings, where it identified conflicts and gaps in the record that remain
unresolved. See id. at 1047 (“When there are outstanding issues that must be
resolved before a determination can be made, or if further administrative
proceedings would be useful, a remand is necessary.”). The district court
determined that further proceedings were necessary for the ALJ to evaluate treating
physician Dr. Anthony Lee’s medical opinions in light of a supplemental statement
submitted to the Appeals Council; properly assess Southern’s subjective
allegations and a lay witness statement; pose complete hypotheticals to the
vocational expert; and reconcile a conflict as to the Dictionary of Occupational
Titles number corresponding to Southern’s past work. We reject Southern’s
contention that the district court erred by not crediting as true the improperly
discounted evidence and awarding benefits. See Treichler v. Comm’r, Soc. Sec.
Admin., 775 F.3d 1090, 1105-07 (9th Cir. 2014) (where outstanding issues require
2 21-16417
resolution, reviewing court need not consider whether to credit claimant’s
testimony as true); see also Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir.
2015) (even where the credit-as-true prerequisites are met, reviewing court retains
discretion to remand for further proceedings).
AFFIRMED.
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