Frances Garcia v. MICHAEL J. ASTRUE, Commissioner of Social Security Administration

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCES GARCIA,
Plaintiff - Appellant,
v.
MICHAEL J. ASTRUE, Commissioner of
Social Security Administration,
Defendant - Appellee.
No. 11-15122
D.C. No. 2:09-cv-02039-NVW
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
John W. Sedwick, District Judge, Presiding
Argued and Submitted March 15, 2012
San Francisco, California
Before: WALLACE, CALLAHAN, and BEA, Circuit Judges.
Frances Garcia appeals from the district court’s decision to remand her
disability claim for further proceedings. She contends that the remand should have
been solely for computation of benefits. We have jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm.
FILED
MAR 28 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1 For similar reasons, we also reject Garcia’s argument that the district court
abused its discretion in not applying the credit-as-true doctrine to her expert
witness’s testimony. In cases, as here, where there are outstanding issues to be
determined on remand before a finding of disability can be made, application of the
credit-as-true rule is discretionary, see Vasquez v. Astrue, 572 F.3d 586, 593 (9th
Cir. 2009), and can be overturned only by the district court abusing its discretion.
A district court’s decision whether a remand should be for further
proceedings or for a calculation of benefits is reviewed for abuse of discretion.
Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). Remand for a computation
of benefits is not appropriate unless the record proves that the claimant is in fact
disabled. Strauss v. Comm’r of the Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th
Cir. 2011). While the length of the proceedings here is regrettable, there are
outstanding issues to be determined on remand before a finding can be made that
Garcia was disabled for the relevant period. The vocational expert presented
evidence that there were jobs in the regional economy that Garcia could perform,
but the expert’s testimony conflicted with the Dictionary of Occupational Titles
(“DOT”). The district judge did not abuse his discretion because further
proceedings are necessary to determine whether the vocational expert can present a
reasonable explanation for the conflict with the DOT. See Massachi v. Astrue, 486
F.3d 1149, 1152–53 (9th Cir. 2007). 1
AFFIRMED.

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