Robert J. Platek v. KILOLO KIJAKAZI, Acting Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT J. PLATEK,
Plaintiff-Appellant,
v.
KILOLO KIJAKAZI, Acting
Commissioner of Social Security,
Defendant-Appellee.
No. 21-16296
D.C. No. 2:20-cv-01161-MTL
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Michael T. Liburdi, District Judge, Presiding
Submitted June 13, 2022**
San Francisco, California
Before: BYBEE, CALLAHAN, and COLLINS, Circuit Judges.
This single-issue appeal concerns whether the district court abused its
discretion in remanding the case to the Commissioner for further proceedings.
Both parties agree that the Social Security Administration’s Administrative Law
FILED
JUN 21 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

-- 1 of 4 --

Judge (ALJ) erred. They only disagree over the proper remedy. The district court
concluded that, in light of disagreements and inconsistencies regarding the medical
evidence, the case should be remanded to the Agency for further proceedings.
Platek appeals the district court’s decision. We affirm.
The ALJ conducted the five-step sequential analysis set forth in 20 C.F.R.
§ 404.1520 and determined that Platek was not disabled. The Commissioner has
conceded error in this analysis—the ALJ did not sufficiently discuss or analyze
Platek’s spinal impairment at step three of the evaluation process. The district
court remanded this case for further proceedings to determine whether Platek met
or equaled Listing 1.04 and address contradictory evidence in the record. Platek
argues that the district court erred in failing to apply the credit-as-true rule and
remanding for an immediate award of benefits. We “review the district court’s
decision to remand for further proceedings or to direct a payment of benefits for an
abuse of discretion.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090,
1098 (9th Cir. 2014). We conclude that the district court did not abuse its
discretion.
“[T]he proper course, except in rare circumstances, is to remand to the
agency for additional investigation or explanation.” Id. at 1099 (quoting Fla.
Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)). Remanding for the
2

-- 2 of 4 --

immediate award of benefits only takes place “where no useful purpose would be
served by further administrative proceedings and the record has been thoroughly
developed.” Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012) (quoting Swenson
v. Sullivan, 876 F.2d 683, 689 (9th Cir. 1989)). Specifically, we have held that
such a remand may happen when the following three factors are satisfied:
(1) the ALJ has failed to provide legally sufficient reasons for rejecting
such evidence, (2) there are no outstanding issues that must be resolved
before a determination of disability can be made, and (3) it is clear from
the record that the ALJ would be required to find the claimant disabled
were such evidence credited.
Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). As the district court
explained, “the State agency consultants considered Listing 1.04 and found that the
Listing was not met, [] while Dr. Vengurlekar opined that [Platek] had met Listing
1.04.” And Dr. Vengurlekar’s opinion regarding the onset of Platek’s pain was
inconsistent with his own treatment records, Platek’s testimony, and findings from
the State agency medical consultants. In light of the disagreements and
inconsistencies contained in the administrative record, we cannot find that the
district court’s decision “lies beyond the pale of reasonable justification under the
circumstances.” Harman v. Apfel, 211 F.3d 1172, 1175 (9th Cir. 2000). Thus, the
district court did not abuse its discretion in remanding to the Commissioner to
resolve the contested issues.
3

-- 3 of 4 --

AFFIRMED.
4

-- 4 of 4 --