NOT FOR PUBLICATION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.
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
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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