Lisa Rea v. Kilolo Kijakazi ( 2022 )

NOT FOR PUBLICATION FILED
MAR 31 2022
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LISA DARLENE REA, No. 19-35515
Plaintiff-Appellant, D.C. No. 3:18-cv-01009-MO
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Submitted March 31, 2022**
Before: D.W. NELSON, BRESS, and BUMATAY, Circuit Judges.
Lisa Rea (“Rea”) appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of her application for disability
insurance benefits under Title II of the Social Security Act. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo. Ford v. Saul, 950 F.3d 1141, 1153-
*
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).
54 (9th Cir. 2020) (quotation omitted). We vacate and remand for further
proceedings.
On April 24, 2017, an administrative law judge (“ALJ”) denied Rea’s claim
for disability benefits. While Rea’s appeal from that decision was pending in this
Court, a different ALJ granted Rea’s second application for benefits. This second
application alleged a disability onset date of April 25, 2017, the day after Rea’s
first application was denied.
It appears that the two proceedings had different outcomes largely due to
conflicting vocational expert testimony. Specifically, the vocational expert in the
first decision testified that Rea’s past relevant work consisted of a retail store
manager. The vocational expert in the second decision testified that Rea’s past
relevant work consisted of a composite job with two components—a retail store
manager and a stocking clerk. Although the second ALJ decision was based on
some new medical evidence that was not introduced at the hearing before the first
ALJ, the decisions were largely based on the same long-standing medical
conditions and subjective symptom testimony from Rea. Relying on this evidence
and the testimony of their respective vocational experts, the two ALJs reached
different conclusions about whether Rea was disabled.
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
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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). Rea’s first
application was denied only one day before the onset date of her second
application, and we cannot easily reconcile the discrepancies between the two
decisions and the seemingly inconsistent testimony from the vocational experts on
the record before us. Therefore, “further consideration of the factual issues is
appropriate” to determine whether Rea’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.
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