Nancy Nunez v. Carolyn Colvin ( 2017 )

FILED
NOT FOR PUBLICATION
JAN 18 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NANCY LOUISE NUNEZ, No. 15-55537
Plaintiff-Appellant, D.C. No. 5:13-cv-02131-AGR
v.
MEMORANDUM*
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Alicia G. Rosenberg, Magistrate Judge, Presiding
Submitted January 12, 2017**
Pasadena, California
Before: KOZINSKI, McKEOWN, and WATFORD, Circuit Judges.
We grant Nancy Nunez’s motion to remand under 42 U.S.C. § 405(g).
On March 2, 2012, an administrative law judge (ALJ) denied Nunez’s claim
for disability benefits. While Nunez’s appeal from that decision was pending in
*
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).
Page 2 of 3
this court, a different ALJ granted Nunez’s second application for benefits. This
second application alleged a disability onset date of March 3, 2012, the day after
Nunez’s first application was denied.
The two proceedings had different outcomes because of conflicting
vocational expert testimony. In the first proceeding, the vocational expert testified
that Nunez’s past work as a registered nurse required transferrable skills such as
recordkeeping, organizational skills, and computer skills. That expert concluded
that Nunez could work as an appointment clerk, an occupation with a substantial
number of positions in the national economy. In the second proceeding, a different
vocational expert testified that Nunez had nursing skills and patient care skills.
That expert found that, as a result, Nunez could work only as a cardiac monitor
technician, a job with few positions in the national economy. Relying on the
testimony of their respective vocational experts, the two ALJs reached opposite
conclusions about whether Nunez was eligible for disability benefits.
Remand is appropriate under 42 U.S.C. § 405(g) when the onset date of a
successful application closely follows a denial of benefits, and when the initial
denial and subsequent award are not easily reconcilable on the record before the
court. See Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010). Nunez’s first
application was denied only one day before the onset date of her second
Page 3 of 3
application, and we cannot easily reconcile the inconsistent testimony from the
vocational experts on the record before us. Therefore, “further consideration of the
factual issues is appropriate” to determine whether Nunez’s first application should
have been granted. Id.
We remand to the district court with instructions to remand to the
Commissioner for further proceedings. We do not reach any of the other issues
raised in this appeal.
VACATED AND REMANDED.