NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 6 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ANH TUYET THAI, No. 24-329 D.C. No. Plaintiff - Appellant, 3:23-cv-00639-BLM v. MEMORANDUM** CAROLYN W. COLVIN*, Acting Commissioner of Social Security,
Defendant - Appellee.
Appeal from the United States District Court for the Southern District of California Barbara Lynn Major, Magistrate Judge, Presiding
Submitted December 4, 2024*** Pasadena, California
Before: GOULD, CLIFTON, and SANCHEZ, Circuit Judges.
* Carolyn W. Colvin is substituted for her predecessor Martin O’Malley, Commissioner of the Social Security Administration, as Acting Commissioner of the Social Security Administration, pursuant to Federal Rule of Appellate Procedure 43(c). ** 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). Plaintiff Anh Tuyet Thai appeals a district court order that reversed and
remanded a partial denial of Social Security benefits. She argues that the district
court should have remanded for the immediate award of benefits, not for further
proceedings. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
We review the district court’s decision to remand for further proceedings for
abuse of discretion. Washington v. Kijakazi, 72 F.4th 1029, 1041 (9th Cir. 2023).
Under this deferential standard, we will only reverse and direct the immediate
award of benefits if “the reviewed decision lies beyond the pale of reasonable
justification.” Id. (quoting Miskey v. Kijakazi, 33 F.4th 565, 570 (9th Cir. 2022)).
A three-step framework guides our assessment of whether a case should be
remanded for benefits. First, the administrative law judge (ALJ) must have “failed
to provide legally sufficient reasons for rejecting the evidence.” Benecke v.
Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). Second, there can be “no outstanding
issues that must be resolved before a determination of disability can be made.” Id.
Finally, it must be “clear from the record that the ALJ would be required to find
the claimant disabled were such evidence credited.” Id.
This framework requires us to affirm. Thai satisfies the first step. As the
district court found, the ALJ erred by not considering Thai’s fibromyalgia
symptoms and diagnosis, even though the record contains significant evidence of
her fibromyalgia.
2 24-329 At the second step, however, “outstanding issues” arise that preclude the
award of benefits. The district court concluded that the record was “ambiguous
regarding how [Thai]’s fibromyalgia will affect the step two through five
determinations, including her [residual functional capacity], and how vocational
experts will evaluate what jobs in the national economy [Thai] may be able to
perform.”
We agree. To begin, the record is not clear about the degree to which Thai’s
work limitations stem from her fibromyalgia. Her initial application for benefits
did not mention fibromyalgia. The record contains opinions from physicians who
acknowledged Thai’s full body pain but opined that she still had a full range of
motion and could work for a normal workday. The medical records also suggest
that Thai’s depression, not her fibromyalgia, might be her most overwhelming
challenge.
Other record evidence casts doubt on Thai’s credibility. The ALJ
considered the opinion of Dr. Douglas Engelhorn, who observed that Thai
“tend[ed] to enhance her symptoms” and suspected that she might be
“malingering,” or intentionally exaggerating her symptoms. The Cooperative
Disability Investigations Unit, which investigates alleged Social Security fraud,
concluded that Thai “function[ed] at a higher level than alleged.” Moreover, at the
end of Thai’s first administrative hearing, she said, “Well, is that a grant or what?”
3 24-329 in “a bright and normal voice.” The first ALJ described this as a marked
difference from “the way she responded during the hearing,” suggesting “a lack
[of] consistency with the medical record.” Considered “as a whole,” this record
contains “conflicts, ambiguities, [and] gaps” that necessitate further proceedings.
Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014).
The third step confirms this conclusion. Even if the evidence of Thai’s
fibromyalgia symptoms was credited as true, it is not clear that the record would
lead to a finding of disability. In finding Thai not disabled, the ALJ appears to
have considered at least some of the fibromyalgia symptoms. For example, the
ALJ expressly grappled with Thai’s “multiple pain complaints in her neck, lower
back, shoulder, knees, and generalized joint and body pain.” These symptoms, the
record suggests, are related to Thai’s fibromyalgia.
The evidence that Thai asks us to credit cuts in both directions, too. Thai
principally relies on the opinion of Dr. James Grisolia, who treated Thai for several
years. Dr. Grisolia consistently diagnosed Thai with fibromyalgia. He also opined
that Thai’s “most overwhelming problem” was her “severe underlying depression.”
Thai additionally points to the opinion of Dr. Nadine Sidrick, one of her treating
physicians. Dr. Sidrick similarly opined that Thai’s “severe depression” was the
cause of Thai’s worsening condition. Yet the ALJ considered Thai’s depression,
deeming it a severe impairment. The ALJ nonetheless concluded that Thai was not
4 24-329 disabled. Crediting this evidence, then, would not necessarily change the ALJ’s
conclusion: while it would demonstrate the symptoms of Thai’s fibromyalgia, it
would also suggest that Thai’s depression was her dominant impairment—an
impairment already found insufficient to support a disability determination.
Thai’s reliance on Benecke v. Barnhart, 379 F.3d 587, and Revels v.
Berryhill, 874 F.3d 648 (9th Cir. 2017), is misplaced. In both cases, the ALJs
erred by misunderstanding the nature of fibromyalgia, not by overlooking it
altogether. See Benecke, 379 F.3d at 594–96; Revels, 874 F.3d at 662. Because
the ALJs had considered how fibromyalgia impacted the disability determination,
the court could pinpoint the shortcomings and assess how proper consideration of
the claimants’ fibromyalgia would affect the outcomes. See Benecke, 379 F.3d at
595 (remanding for benefits where “the ALJ’s decision specifically addressed the
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 6 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ANH TUYET THAI, No. 24-329 D.C. No. Plaintiff - Appellant, 3:23-cv-00639-BLM v. MEMORANDUM** CAROLYN W. COLVIN*, Acting Commissioner of Social Security,
Defendant - Appellee.
Appeal from the United States District Court for the Southern District of California Barbara Lynn Major, Magistrate Judge, Presiding
Submitted December 4, 2024*** Pasadena, California
Before: GOULD, CLIFTON, and SANCHEZ, Circuit Judges.
* Carolyn W. Colvin is substituted for her predecessor Martin O’Malley, Commissioner of the Social Security Administration, as Acting Commissioner of the Social Security Administration, pursuant to Federal Rule of Appellate Procedure 43(c). ** 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). Plaintiff Anh Tuyet Thai appeals a district court order that reversed and
remanded a partial denial of Social Security benefits. She argues that the district
court should have remanded for the immediate award of benefits, not for further
proceedings. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
We review the district court’s decision to remand for further proceedings for
abuse of discretion. Washington v. Kijakazi, 72 F.4th 1029, 1041 (9th Cir. 2023).
Under this deferential standard, we will only reverse and direct the immediate
award of benefits if “the reviewed decision lies beyond the pale of reasonable
justification.” Id. (quoting Miskey v. Kijakazi, 33 F.4th 565, 570 (9th Cir. 2022)).
A three-step framework guides our assessment of whether a case should be
remanded for benefits. First, the administrative law judge (ALJ) must have “failed
to provide legally sufficient reasons for rejecting the evidence.” Benecke v.
Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). Second, there can be “no outstanding
issues that must be resolved before a determination of disability can be made.” Id.
Finally, it must be “clear from the record that the ALJ would be required to find
the claimant disabled were such evidence credited.” Id.
This framework requires us to affirm. Thai satisfies the first step. As the
district court found, the ALJ erred by not considering Thai’s fibromyalgia
symptoms and diagnosis, even though the record contains significant evidence of
her fibromyalgia.
2 24-329 At the second step, however, “outstanding issues” arise that preclude the
award of benefits. The district court concluded that the record was “ambiguous
regarding how [Thai]’s fibromyalgia will affect the step two through five
determinations, including her [residual functional capacity], and how vocational
experts will evaluate what jobs in the national economy [Thai] may be able to
perform.”
We agree. To begin, the record is not clear about the degree to which Thai’s
work limitations stem from her fibromyalgia. Her initial application for benefits
did not mention fibromyalgia. The record contains opinions from physicians who
acknowledged Thai’s full body pain but opined that she still had a full range of
motion and could work for a normal workday. The medical records also suggest
that Thai’s depression, not her fibromyalgia, might be her most overwhelming
challenge.
Other record evidence casts doubt on Thai’s credibility. The ALJ
considered the opinion of Dr. Douglas Engelhorn, who observed that Thai
“tend[ed] to enhance her symptoms” and suspected that she might be
“malingering,” or intentionally exaggerating her symptoms. The Cooperative
Disability Investigations Unit, which investigates alleged Social Security fraud,
concluded that Thai “function[ed] at a higher level than alleged.” Moreover, at the
end of Thai’s first administrative hearing, she said, “Well, is that a grant or what?”
3 24-329 in “a bright and normal voice.” The first ALJ described this as a marked
difference from “the way she responded during the hearing,” suggesting “a lack
[of] consistency with the medical record.” Considered “as a whole,” this record
contains “conflicts, ambiguities, [and] gaps” that necessitate further proceedings.
Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014).
The third step confirms this conclusion. Even if the evidence of Thai’s
fibromyalgia symptoms was credited as true, it is not clear that the record would
lead to a finding of disability. In finding Thai not disabled, the ALJ appears to
have considered at least some of the fibromyalgia symptoms. For example, the
ALJ expressly grappled with Thai’s “multiple pain complaints in her neck, lower
back, shoulder, knees, and generalized joint and body pain.” These symptoms, the
record suggests, are related to Thai’s fibromyalgia.
The evidence that Thai asks us to credit cuts in both directions, too. Thai
principally relies on the opinion of Dr. James Grisolia, who treated Thai for several
years. Dr. Grisolia consistently diagnosed Thai with fibromyalgia. He also opined
that Thai’s “most overwhelming problem” was her “severe underlying depression.”
Thai additionally points to the opinion of Dr. Nadine Sidrick, one of her treating
physicians. Dr. Sidrick similarly opined that Thai’s “severe depression” was the
cause of Thai’s worsening condition. Yet the ALJ considered Thai’s depression,
deeming it a severe impairment. The ALJ nonetheless concluded that Thai was not
4 24-329 disabled. Crediting this evidence, then, would not necessarily change the ALJ’s
conclusion: while it would demonstrate the symptoms of Thai’s fibromyalgia, it
would also suggest that Thai’s depression was her dominant impairment—an
impairment already found insufficient to support a disability determination.
Thai’s reliance on Benecke v. Barnhart, 379 F.3d 587, and Revels v.
Berryhill, 874 F.3d 648 (9th Cir. 2017), is misplaced. In both cases, the ALJs
erred by misunderstanding the nature of fibromyalgia, not by overlooking it
altogether. See Benecke, 379 F.3d at 594–96; Revels, 874 F.3d at 662. Because
the ALJs had considered how fibromyalgia impacted the disability determination,
the court could pinpoint the shortcomings and assess how proper consideration of
the claimants’ fibromyalgia would affect the outcomes. See Benecke, 379 F.3d at
595 (remanding for benefits where “the ALJ’s decision specifically addressed the
central remaining issue”); Revels, 874 F.3d at 665, 669 (remanding for benefits
where crediting as true a single physician’s opinion would lead to a disability
finding). By contrast, the ALJ here failed to consider fibromyalgia at all. We
cannot speculate as to how evidence of fibromyalgia would impact the fact-
intensive disability determination.
While we are sympathetic to Thai’s situation, we can only remand for
benefits if “the claimant is, in fact, disabled, no matter how egregious the ALJ’s
errors may be.” Strauss v. Comm’r of the Soc. Sec. Admin., 635 F.3d 1135, 1138
5 24-329 (9th Cir. 2011). Here, factual questions remain that the ALJ is best suited to
resolve. 1 The district court did not abuse its discretion in remanding for further
proceedings.
AFFIRMED.
1 We note that the ALJ found Thai disabled as of January 30, 2017. On remand, the only period that will be at issue is from March 29, 2013 (the date Thai first applied for benefits), to January 29, 2017—a period of less than four years. See Wellington v. Berryhill, 878 F.3d 867, 872 (9th Cir. 2017) (noting that a claimant “cannot receive benefits for any period before her application date”).
6 24-329