                             NOT FOR PUBLICATION

                      UNITED STATES COURT OF APPEALS                          FILED
                              FOR THE NINTH CIRCUIT                           APR 21 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

ALLEN GENE SEATON,                               No. 12-16216

                Plaintiff - Appellant,           D.C. No. 2:11-cv-01143-FJM

  v.
                                                 MEMORANDUM*
CAROLYN W. COLVIN, Acting
Commissioner of Social Security
Administration,

                Defendant - Appellee.


                    Appeal from the United States District Court
                              for the District of Arizona
                Frederick J. Martone, Senior District Judge, Presiding

                         Argued and Submitted April 11, 2014
                              San Francisco, California

Before: TALLMAN and CLIFTON, Circuit Judges, and DUFFY, District Judge.**




            *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable Kevin Thomas Duffy, District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
      Allen Seaton appeals the district court’s order reversing the Administrative

Law Judge (ALJ) and remanding Seaton’s disability claim for further

administrative proceedings. Seaton contends that the district court should have

applied the credit-as-true rule and remanded for an immediate award of benefits.

We review the district court’s decision not to apply the credit-as-true rule for an

abuse of discretion. Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). We

have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      The district court applied the three-factor Smolen test, which is the correct

legal rule in this circuit. See Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996);

see also United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc)

(abuse of discretion standard).

      Applying the Smolen test, the district court concluded that the ALJ needed to

resolve conflicts between improperly rejected medical opinions. Two treating

physicians opined on Seaton’s exertional limitations. One opinion is consistent

with disability; another suggests otherwise. If we credit both opinions as true, they

conflict. It was not illogical, implausible, or without support from inferences in the

record for the district court to defer to the ALJ the fact-finding task of determining

which opinion is more true than the other. See Hinkson, 585 F.3d at 1262.




                                          2
      Seaton says that Dr. Crawford’s medical opinion is unrebutted in its

description of Seaton’s pain-related mental limitations, and that Seaton’s

improperly rejected symptom testimony is consistent with Dr. Crawford’s opinion.

Pointing to our decision in Benecke v. Barnhart, 379 F.3d 587 (9th Cir. 2004),

Seaton argues that we should forego the input of a vocational expert and determine

disability as a matter of law. Our review, however, is confined by the abuse of

discretion standard. The district court acted within its discretion by following the

more common approach in this circuit of remanding for consultation by a

vocational expert. See, e.g., Harman, 211 F.3d at 1180 (“In cases where the

testimony of the vocational expert has failed to address a claimant’s limitations as

established by improperly discredited evidence, we consistently have remanded for

further proceedings rather than payment of benefits.”); Burkhart v. Bowen, 856

F.2d 1335, 1340 (9th Cir. 1988) (“When a claimant’s non-exertional limitations are

sufficiently severe so as to significantly limit the range of work permitted by the

claimant’s exertional limitations . . . . the Secretary must take the testimony of a

vocational expert.” (citations and quotations omitted)).

      Even if Seaton would be found to be disabled when the evidence at issue is

credited, a remand for further proceedings is independently appropriate where, like

here, “[t]he ALJ did not reach the issue of when [Seaton’s] disability began, and


                                           3
the evidence [he] wants credited does not identify a particular onset date.” Luna v.

Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010).

      AFFIRMED.




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