Terri Sue Tye v. KILOLO KIJAKAZI, Acting Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERRI SUE TYE,
Plaintiff-Appellant,
v.
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
No. 21-35639
D.C. No. 3:19-cv-02034-MK
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Mustafa T. Kasubhai, Magistrate Judge, Presiding
Submitted December 9, 2022 **
Seattle, Washington
Before: McKEOWN, MILLER, and MENDOZA, Circuit Judges.
Plaintiff-Appellant Terri Tye appeals the district court’s order remanding her
case to the Social Security Administration (“SSA”) for further administrative
proceedings. We review the district court’s decision for abuse of discretion.
* 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).
FILED
DEC 13 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Tye argues that the district court abused its discretion in remanding her case
for further proceedings rather than remanding for an immediate award of benefits.
We have established a “credit-as-true rule” to determine when it is appropriate to
remand for an immediate payment of benefits. Garrison v. Colvin, 759 F.3d 995,
1020 (9th Cir. 2014). Under this rule we ask whether: “(1) the record has been
fully developed and further administrative proceedings would serve no useful
purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting
evidence, whether claimant testimony or medical opinion; and (3) if the improperly
discredited evidence were credited as true, the ALJ would be required to find the
claimant disabled on remand.” Id.
To determine if further proceedings would be useful, “we consider whether
the record as a whole is free from conflicts, ambiguities, or gaps, whether all
factual issues have been resolved, and whether the claimant’s entitlement to
benefits is clear under the applicable legal rules.” Treichler, 775 F.3d at 1103–04.
We remand for an immediate award of benefits only in “rare circumstances.” Id. at
1101.
We cannot say that the district court abused its discretion in remanding
Tye’s claims for further proceedings. Further proceedings would, at a minimum,

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serve the useful purpose of reconciling inconsistencies in the medical record and
determining Tye’s disability onset date, if any.
Further proceedings are necessary to properly weigh and resolve conflicts
among the medical opinions. For example, Dr. Tippett, Tye’s treating physician,
opined that Tye’s mental health limitations would lead her to miss five or more
days of work each month and be “off task” for more than 30 percent of the
workday. In contrast, consultative psychologist Dr. Whitehead opined that Tye’s
impairments affected her abilities to work, but only mildly, moderately, or not at
all. Similarly, the state psychologist, on review of the record, determined that
Tye’s impairments were non-severe. Given these conflicts, further proceedings are
necessary for the ALJ to properly evaluate Dr. Tippett’s opinion and resolve the
conflicts between her opinion and those of Dr. Whitehead and the state
psychologist. See Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015)
(affirming remand for further proceedings where, among other reasons, there were
conflicts between the treating physician’s opinion and other medical opinions).
Furthermore, Tye’s disability onset date, if any, is ambiguous. In her SSI
and SSD claims, Tye alleges June 1, 2011 as her disability onset date. But Tye asks
this Court to credit Dr. Tippett’s testimony as true and establish a disability onset
date of at least June 29, 2018. Moreover, there are ambiguities in the record as to
when Tye began experiencing disabling symptoms. The first mention of mental

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health issues in the medical record is in late 2015. Dr. Tippett first saw Tye in
2016, and while she opined in 2018 that Tye’s symptoms were “longstanding,” she
did not specify a particular onset date. This ambiguity is precisely the type of issue
that should be resolved by the ALJ on remand. See Luna v. Astrue, 623 F.3d 1032,
1035 (9th Cir. 2010) (affirming remand for further proceedings where “[t]he ALJ
did not reach the issue of when [plaintiff’s] disability began, and the evidence she
want[ed] credited d[id] not identify a particular onset date”).
Finally, Tye asks us to find that the district court erred in declining to
address whether the ALJ de facto reopened her previous claim. The district court
determined that resolution of this issue was not necessary in light of its decision to
remand Tye’s case for further proceedings. We decline to disrupt this
determination and prospectively reach this hypothetical issue.
AFFIRMED.

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