Jack Milojevich v. Martin O'Malley

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 4 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JACK P. MILOJEVICH, No. 23-35536 Plaintiff-Appellant, D.C. No. 2:22-cv-01144-GJL v. MEMORANDUM * MARTIN J. O'MALLEY, Commissioner of Social Security, Defendant-Appellee. Appeal from the United States District Court for the Western District of Washington Grady J. Leupold, Magistrate Judge, Presiding Submitted August 21, 2024** Portland, Oregon Before: CHRISTEN, NGUYEN, and HURWITZ, Circuit Judges. Jack Milojevich appeals the district court’s judgment affirming the denial by the Commissioner of Social Security of an application for social security disability benefits. We have jurisdiction under 28 U.S.C. § 1291. We vacate the district * 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). court’s judgment and remand with instructions. On July 13, 2014, after the briefing on appeal was completed, a second Administrative Law Judge (“ALJ”) granted Milojevich benefits. That ALJ found him disabled since May 27, 2021, one day after the unfavorable decision on appeal was entered. We have previously noted 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.” Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010) (cleaned up), see also 42 U.S.C. § 405(g) (authorizing a remand to consider additional evidence “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”). The Commissioner argues that remand is not warranted because the second favorable decision is based on different medical evidence about a different time period. To the contrary, the second ALJ relied on the opinions of many of the same doctors—none of whom reviewed any updated medical records—that the first ALJ considered. Although the second ALJ references some new medical evidence, it is neither obvious from that ALJ’s opinion what this new medical evidence was nor was it provided to this court. As in Luna, we “cannot conclude based on the record before us whether the decisions concerning [Milojevich] were 2 reconcilable or inconsistent.” Luna, 623 F.3d at 1035. “Given this uncertainty, remand for further factual proceedings [is] an appropriate remedy.” Id. Therefore, we vacate the district court’s summary judgment in favor of the Commissioner and remand with instructions to remand to the ALJ. The district court shall direct the ALJ to (1) allow the parties to present any new evidence submitted during the second proceeding that pertains to the first application’s period of disability, and (2) reconsider whether Milojevich was disabled during the time period relevant to his first application in light of any new evidence. Each party shall bear its own costs. VACATED and REMANDED. 3