Harold Newton v. ANDREW M. SAUL, Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HAROLD NEWTON,
Plaintiff-Appellant,
v.
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
No. 18-16651
D.C. No. 3:17-cv-08247-DGC
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Submitted March 5, 2021**
Before: SILVERMAN, GRABER, and CLIFTON, Circuit Judges.
Dissent by Judge CLIFTON
Harold Newton appeals the district court’s judgment vacating the
Commissioner of Social Security’s denial of his application for disability insurance
benefits and supplemental security income under Titles II and XVI of the Social
* 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
MAR 9 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Security Act and remanding to the agency for further proceedings. We have
jurisdiction under 28 U.S.C. § 1291. We review for abuse of discretion the district
court’s decision to remand for further proceedings. Leon v. Berryhill, 880 F.3d
1041, 1045 (9th Cir. 2017). We reverse and remand with instructions to remand to
the ALJ for the calculation and award of benefits.
Here, the district court held that the ALJ erred by discounting the opinion of
Claimant’s treating doctor, the opinion of his examining doctor, and Claimant’s
own testimony concerning the extent of his symptoms. Additional medical
evidence also supports the claim of disability. In deciding the scope of the remand,
the district court reasoned that there were conflicting medical opinions in the
record, but they came from non-examining doctors and a consultative examiner
who saw Claimant only once, about two years before the date of the hearing and
before much of the erroneously discounted medical evidence was developed.
The most closely analogous precedent is Trevizo v. Berryhill, 871 F.3d 664,
683 (9th Cir. 2017). There, the ALJ erroneously disregarded the treating
physician’s opinion, while accepting the contrary opinion of an examining
physician, and erroneously rejected the claimant’s pain testimony. The claimant
had first sought benefits seven years before we issued our opinion. We remanded
for an award of benefits. Id. Here, the ALJ’s errors are similar, the record is
complete, no legally sufficient evidence casts doubt on Claimant’s disability, and

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Claimant first sought benefits seven years ago. Even though the claimant in
Trevizo was older than Claimant is (age 65 there, versus age 46 at the time of the
hearing in this case), a younger age alone does not preclude an award of benefits.
See Smolen v. Chater, 80 F.3d 1273, 1278, 1292 (9th Cir. 1996) (remanding for an
award of benefits for a claimant who was in her 30s and who had waited seven
years for a disability determination).
REVERSED; REMANDED WITH INSTRUCTIONS.

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No. 18-16651, Newton v. Saul
CLIFTON, Circuit Judge, dissenting:
I respectfully dissent. I cannot conclude that the district abused its discretion
by remanding for further administrative proceedings rather than for an immediate
award of benefits. See Harman v. Apfel, 211 F.3d 1172, 1177–78 (9th Cir. 2000)
(explaining that the authority to modify a decision without remand for further
proceedings was “intended to be discretionary.”).
“Congress entrusted the Commissioner with the power and authority to
enact rules and regulations that govern the disability determination,” and, in
particular, to “make findings of fact, and decisions as to the rights of any
individual applying for a payment under the Act.” Treichler v. Commissioner of
Social Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014) (citing 42 U.S.C. §§ 405,
421, 423) (internal quotation marks omitted). “For highly fact-intensive
individualized determinations like a claimant's entitlement to disability benefits,
Congress ‘places a premium upon agency expertise, and, for the sake of
uniformity, it is usually better to minimize the opportunity for reviewing courts to
substitute their discretion for that of the agency.’” Treichler, 775 F.3d at 1098
(quoting Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 621 (1996)). The ALJ, not
the court, is responsible for determining credibility, resolving conflicts in
testimony and medical opinions, and weighing evidence.
FILED
MAR 9 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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If a reviewing court determines that the Commissioner erred in some respect
and the error is not harmless, “the proper course, except in rare circumstances, is to
remand to the agency for additional investigation or explanation.” Id. at 1099
(internal quotation marks and citations omitted). “An automatic award of benefits
in a disability benefits case is a rare and prophylactic exception to the
well-established ordinary remand rule,” Leon v. Berryhill, 880 F.3d 1041, 1044
(9th Cir. 2017), applicable only “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) (internal quotation marks
omitted).
The district court concluded that further administrative proceedings would
be useful because the record contained conflicting medical opinions and reflected
doubt as to whether Newton was disabled. See Treichler, 775 F.3d at 1101
(explaining that administrative proceedings are generally useful when there is a
need to resolve conflicts and ambiguities in the record and noting that “[w]here
there is conflicting evidence, and not all essential factual issues have been
resolved, a remand for an award of benefits is inappropriate.”); Andrews v. Shalala,
53 F.3d 1035, 1039 (9th Cir. 1995). That was not an abuse of discretion. On
remand the ALJ might have discounted the opinions of Drs. Ohman and Patel for
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legally sufficient reasons and accorded more weight to the conflicting opinions of
the other medical professionals. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir.
2002) (“The opinions of non-treating or non-examining physicians may . . . serve
as substantial evidence when the opinions are consistent with independent clinical
findings or other evidence in the record.”) Ultimately, the “decision whether to
remand for further development of the administrative record or to direct an
immediate award of benefits is a fact-bound determination,” which should be
afforded discretion. Harman, 211 F.3d at 1177. I would affirm.
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