FILED

NOT FOR PUBLICATION

JUN 21 2022

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT J. PLATEK, No. 21-16296

Plaintiff-Appellant, D.C. No. 2:20-cv-01161-MTL

v.

MEMORANDUM*

KILOLO KIJAKAZI, Acting Commissioner of Social Security,

Defendant-Appellee.

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

* 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). 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 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.

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AFFIRMED.

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