Kilmurray

dissenting.

I respectfully dissent believing that the district court did not abuse its discretion in ordering a remand for further administrative proceedings instead of awarding a payment of benefits. See Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir.2000) (holding that a remand for further administrative proceedings is proper when there are “outstanding issues that must be resolved before a determination of disability can be made.”) In my view, outstanding issues that should be resolved before making a determination of disability include a further assessment of conflicting medical testimony upon proper standards. At this point, it is premature for our court to foreclose further proceedings.

MEMORANDUM *

Appellant Regina Kilmurray appeals the order of the district court reversing and remanding for an additional administrative hearing regarding Social Security disability benefits for Larry Silva, now deceased. We reverse and remand with instructions to direct the Social Security Commissioner to award Kilmurray the benefits claimed, as well as fees pursuant to 28 U.S.C. § 2412 (d)(1) and 42 U.S.C. § 406 (b).

We review a district court’s decision whether to remand for further proceedings or for the payment of benefits for an abuse of discretion. See Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir.2000). Because 1) the ALJ failed to provide legally sufficient reasons for rejecting the relevant evidence, 2) there are no outstanding issues that must be resolved before making a determination of disability, and 3) it is clear from the record that the ALJ would be required to find the claimant disabled were the *129 evidence properly credited, id., a remand for the award of benefits is required here.

First, with respect to both Silva’s subjective pain testimony and the lay testimony, the Commissioner conceded, and the district court found, error relating to the ALJ’s failure…