United States v. 2010-10-12 | 08-16852 | CARMEN LUNA V. MICHAEL ASTRUE | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 CARMEN CHRISTINA LUNA,
Plaintiff-Appellant, No. 08-16852
v. D.C. No.
 2:07-cv-00719-MHBMICHAEL J. ASTRUE, Commissioner
of Social Security Administration, OPINION
Defendant-Appellee. 
Appeal from the United States District Court
for the District of Arizona
Michelle H. Burns, Magistrate Judge, Presiding
Argued and Submitted
January 12, 2010—San Francisco, California
Filed October 12, 2010
Before: Alex Kozinski, Chief Judge, J. Clifford Wallace and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Clifton
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COUNSEL
Mark Caldwell, Phoenix, Arizona, for the appellant.
John J. Tuchi, United States Attorney, Phoenix, Arizona;
Lucille Gonzales Meis, Regional Chief Counsel, Region IX,
Theophous H. Reagans, Special Assistant U.S. Attorney, and
Shea L. Bond (argued), Special Assistant U.S. Attorney,
Social Security Administration, San Francisco, California, for
the appellee.
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OPINION
CLIFTON, Circuit Judge:
Carmen C. Luna applied for disability insurance benefits
and supplemental security income in October 2003, and her
application was denied after an administrative law judge
(“ALJ”) found that she was not disabled. That decision is the
subject of this appeal. Luna subsequently filed a second appli-
cation for disability benefits, which was successful. The Com-
missioner identified Luna’s disability onset date as the day
after her first application was denied. The district court
ordered the matter remanded to the agency for further admin-
istrative proceedings to reconcile the Commissioner’s initial
denial of benefits on the first application with the Commis-
sioner’s later award of benefits. Luna argues that the proper
remedy is a remand with an order requiring the payment of
benefits for the time period relevant to her first benefits appli-
cation based on the Commissioner’s subsequent disability
finding. We disagree and affirm the district court’s judgment.
I. Background
Luna applied for disability insurance benefits, under 42
U.S.C. §§ 401-34, and supplemental security income, under
42 U.S.C. §§ 1381-83f. She alleged a disability onset date of
November 30, 2002. After her application was denied, Luna
requested a hearing before an ALJ and amended her alleged
disability onset date to March 26, 2003. The ALJ denied
Luna’s claims on January 27, 2006, determining that Luna’s
impairments — multiple injuries due to a car accident, bilat-
eral osteoarthritis of her knees with pain and limited range of
motion, morbid obesity, fluid retention, anxiety with stress,
depression, right ulnar neuropathy, and personality disorder
— were not severe enough to meet or medically equal those
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. While
Luna had not performed substantial gainful activity during the
relevant period, the ALJ determined that Luna had the resid-
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ual functional capacity to perform sedentary exertional work
with restrictions. The ALJ also determined that Luna was lim-
ited to unskilled work that merely required simple reading,
writing and mathematical tasks. The ALJ then concluded that
Luna could return to her past relevant work as a screw sorter.
The Appeals Council denied Luna’s request for review. Luna
then filed a complaint in district court.
While Luna’s first application was pending on appeal, Luna
filed a second application for disability insurance benefits and
supplemental security income, which was granted by the
Commissioner on August 20, 2007. The Notice of Award
indicates that the Commissioner found Luna disabled as of
January 28, 2006, which is one day after the date Luna was
found not to be disabled based on her first application. Luna
did not provide any further information about the second, suc-
cessful application.
Before the district court the parties agreed that the case
should be remanded to the agency to reconcile the denial of
benefits based on Luna’s first application with the grant of
benefits based on her second application, but they did not
agree on the terms of the remand. Luna argued that the Com-
missioner’s grant of benefits in response to her second appli-
cation clearly indicated that she was disabled for the earlier
time period covered by her first application as well, so the
proper remedy would be a remand ordering that benefits be
paid for that earlier time period. The district court instead
granted the Commissioner’s motion and remanded for further
administrative proceedings to reconsider whether Luna was
actually disabled during the period of time relevant to her first
application. Luna appealed.
II. Discussion
[1] The district court remanded for resolution of factual
issues pursuant to 42 U.S.C. § 405(g), which states, “[t]he
court may, on motion of the Commissioner of Social Security
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made for good cause shown . . . at any time order additional
evidence to be taken before the Commissioner of Social
Security, but only upon a showing that there is new evidence
which is material and that there is good cause for the failure
to incorporate such evidence into the record in a prior pro-
ceeding.” New evidence is material when it “ ‘bear[s] directly
and substantially on the matter in dispute,’ and if there is a
‘reasonabl[e] possibility that the new evidence would have
changed the outcome of the . . . determination.’ ” Bruton v.
Massanari, 268 F.3d 824, 827 (9th Cir. 2001) (alterations and
omission in original) (quoting Booz v. Sec’y of Health &
Human Servs., 734 F.2d 1378, 1380 (9th Cir. 1984)).
[2] The district court held that the finding of disability
based on Luna’s second benefits application was new and
material evidence warranting remand for further factual con-
sideration because it commenced at or near the time Luna was
found not disabled based on the first application. The court
cited a district court decision holding that an ALJ’s award of
benefits less than a week after the ALJ denied a claimant’s
first benefits application constituted “new and material evi-
dence.” See Reichard v. Barnhart, 285 F. Supp. 2d 728, 734
(S.D. W. Va. 2003). That case stands for the proposition that,
“in certain circumstances, an award based on an onset date
coming in immediate proximity to an earlier denial of benefits
is worthy of further administrative scrutiny to determine
whether the favorable event should alter the initial, negative
outcome on the claim.” Bradley v. Barnhart, 463 F. Supp. 2d
577, 580-81 (S.D. W. Va. 2006) (emphasizing the “tight time-
line” from the denial of benefits to the grant of benefits).
[3] We agree. The “reasonable possibility” that the subse-
quent grant of benefits was based on new evidence not con-
sidered by the ALJ as part of the first application indicates
that further consideration of the factual issues is appropriate
to determine whether the outcome of the first application
should be different. See Booz, 734 F.2d at 1380-81.
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[4] Although we have previously upheld the denial of a
remand for further proceedings in somewhat similar circum-
stances, it was in a case where an initial denial and subsequent
award were easily reconcilable on the record before the court.
See Bruton, 268 F.3d at 827 (“In this case, Bruton’s second
application involved different medical evidence, a different
time period, and a different age classification.”). That is not
true here. We cannot conclude based on the record before us
whether the decisions concerning Luna were reconcilable or
inconsistent. There was only one day between the denial of
Luna’s first application and the disability onset date specified
in the award for her successful second application, but she
may have presented different medical evidence to support the
two applications, or there might be some other reason to
explain the change. Given this uncertainty, remand for further
factual proceedings was an appropriate remedy. See Am. Bird
Conservancy v. FCC, 545 F.3d 1190, 1195 n.3 (9th Cir. 2008)
(“The proper remedy for an inadequate record . . . is to
remand to the agency for further factfinding.”).
Luna also contends that the ALJ, in considering her first
application, made several procedural errors by rejecting her
symptom testimony and the opinions of a treating psychiatrist
and an examining psychologist. She argues under the “credit-
as-true” doctrine that the court should hold this evidence to be
credible and remand with instructions for immediate award of
benefits. See, e.g., Lingenfelter v. Astrue, 504 F.3d 1028,
1040-41 (9th Cir. 2007). But applying the rule is not manda-
tory when, even if the evidence at issue is credited, there are
“outstanding issues that must be resolved before a proper dis-
ability determination can be made.” Vasquez v. Astrue, 572
F.3d 586, 593 (9th Cir. 2009). Here, there is such an outstand-
ing issue: The ALJ did not reach the issue of when Luna’s
disability began, and the evidence she wants credited does not
identify a particular onset date. See Harman v. Apfel, 211 F.3d
1172, 1178 n.7 (9th Cir. 2000). The district court did not err
in remanding for further proceedings where “application of
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the [credit-as-true] rule would not result in the immediate
payment of benefits.” Vasquez, 572 F.3d at 593.
III. Conclusion
[5] The district court did not err when it remanded this
case to the Commissioner of Social Security for further fac-
tual proceedings rather than for payment of benefits. We
reach this conclusion whether we review de novo or for abuse
of discretion. See Harman, 211 F.3d at 1176 n.5.
AFFIRMED.
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