FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARMEN CHRISTINA LUNA, 

Plaintiff-Appellant, No. 08-16852

v. D.C. No. 

M 2:07-cv-00719-MHB ICHAEL 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 application for disability benefits, which was successful. The Commissioner 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 administrative proceedings to reconcile the Commissioner’s initial

denial of benefits on the first application with the Commissioner’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 application 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, bilateral 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 resid17046 LUNA v. ASTRUE
ual functional capacity to perform sedentary exertional work

with restrictions. The ALJ also determined that Luna was limited 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, successful 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 Commissioner’s grant of benefits in response to her second application 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

LUNA v. ASTRUE 17047
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 proceeding.” 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 consideration 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 evidence.” 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 timeline” from the denial of benefits to the grant of benefits). 

[3] We agree. The “reasonable possibility” that the subsequent grant of benefits was based on new evidence not considered 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.

17048 LUNA v. ASTRUE
[4] Although we have previously upheld the denial of a

remand for further proceedings in somewhat similar circumstances, 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 “creditas-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 mandatory when, even if the evidence at issue is credited, there are

“outstanding issues that must be resolved before a proper disability determination can be made.” Vasquez v. Astrue, 572

F.3d 586, 593 (9th Cir. 2009). Here, there is such an outstanding 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

LUNA v. ASTRUE 17049
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 factual 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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