Billy Southern, Jr. v. Kilolo Kijakazi

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 5, 2023
• Docket: 21-16417
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 5 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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.

3 21-16417