Dung T. Nguyen v. 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.
** The Honorable Marvin J. Garbis, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DUNG T. NGUYEN,
Plaintiff - Appellant,
v.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant - Appellee.
No. 10-17939
D.C. No. 5:09-cv-02916-JF
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Jeremy D. Fogel, District Judge, Presiding
Argued and Submitted December 19, 2012
Pasadena, California
Before: ALARCÓN and SILVERMAN, Circuit Judges, and GARBIS, Senior
District Judge. **
FILED
DEC 28 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Dung T. Nguyen appeals from the district court’s decision granting summary
judgment in favor of the Commissioner of Social Security (“Commissioner”) and
affirming the Commissioner’s final decision, which concluded that Nguyen is not
entitled to Disability Insurance Benefits or Supplemental Security Income under
Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-434, 1381-1383.
We have jurisdiction under 28 U.S.C. § 1291, and we vacate the district court’s
judgment and remand with instructions.
A disability claim may be remanded for consideration of new evidence “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
proceeding.” 42 U.S.C. § 405(g). Nguyen contends that this Court should remand
his case for consideration of a subsequent, fully favorable, disability determination
by a different administrative law judge (“ALJ”). Although Nguyen did not raise
this contention before the district court or in his opening brief, we exercise our
discretion to consider this issue because Luna v. Astrue, 623 F.3d 1032 (9th Cir.
2010), recently clarified this area of the law after the district court’s decision and
because the issue has been fully explored in the supplemental briefs filed by the
parties pursuant to this Court’s order and in oral argument. See Merrick v. Paul
Revere Life Ins. Co., 500 F.3d 1007, 1013 (9th Cir. 2007) (exercising its discretion

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to consider a claim raised for the first time in a reply brief where “the appellee
ha[d] not been misled and the issue ha[d] been fully explored”); Greger v.
Barnhart, 464 F.3d 968, 973 (9th Cir. 2006) (recognizing that there is an exception
“to the general rule that the court will not consider an issue raised for the first time
on appeal . . . when a new issue arises while appeal is pending because of a change
in the law”).
In Luna, a second ALJ issued a decision granting the claimant’s subsequent
application for disability benefits while her appeal of the denial of her first
application was pending. 623 F.3d at 1034. The second ALJ determined that the
onset date of her disability occurred one day after the initial ALJ issued his
decision finding that she was not disabled. Id. This Court held that remand was
appropriate under 42 U.S.C. § 405(g), where a subsequent, approved disability
application had an onset date that was close in time to the denial under review and
where it was unclear from the record whether the two decisions were reconcilable.
Luna, 623 F.3d at 1034-35.
As in Luna, Nguyen was found to be disabled by a second ALJ shortly after
the ALJ issued the decision denying benefits that is on appeal. Because “[w]e
cannot conclude based on the record before us whether the decisions concerning
[Nguyen] were reconcilable or inconsistent,” id. at 1035, we reverse the district

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court’s grant of summary judgment in favor of the Commissioner and remand with
instructions to remand this matter to the ALJ. In its remand order, the district court
shall direct that the parties be allowed to present any new evidence submitted
during the second proceeding that pertains to the period of disability for the first
application. In addition, the district court shall direct the ALJ to reconsider
whether Nguyen was actually disabled during the period of time relevant to his
first application in light of any new evidence of disability.
VACATED and REMANDED.

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