                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 22 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



CHARLES WILLIAMS EVANS,                          No. 12-35078

              Plaintiff - Appellant,             D.C. No. 2:10-cv-01842-RSL

  v.
                                                 MEMORANDUM **
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,*

              Defendant - Appellee.



                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                             Submitted May 8, 2013 ***
                               Seattle, Washington

Before: HAWKINS, THOMAS, and NGUYEN, Circuit Judges.




       *
              Carolyn W. Colvin, Acting Commissioner of Social Security, is
substituted for her predecessor, Michael J. Astrue, Commissioner of Social
Security, pursuant to Fed. R. App. P. 43(c)(2).

       **    This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Charles W. Evans appeals the district court’s order affirming the

Commissioner of Social Security’s denial of his 2003 application for Disability

Insurance Benefits and Supplemental Security Income. We have jurisdiction under

28 U.S.C. § 1291. We vacate and remand for further proceedings.

      Administrative Law Judge M.J. Adams denied Evans’s 2003 application,

finding that Evans was “not disabled” during the period from January 24, 2000, the

onset date, to March 18, 2010, the date of the decision. Later, after the parties filed

the opening and answering briefs in this appeal, a different Administrative Law

Judge, Gary Elliott, granted Evans’s second application for Supplemental Security

Income.1 ALJ Elliott found that Evans was “disabled” since November 30, 2010,

the date of his second application.

      Both ALJ Adams and ALJ Elliott found that Evans suffers from various

medical conditions, including degenerative disc disease, schizoaffective disorder or

depression, and post-traumatic stress disorder. Yet they reached different



      1
          We grant Evans’s motion to take judicial notice of the August 22, 2012
decision by ALJ Elliott, because the fact that Evans received a favorable decision
is “not subject to reasonable dispute.” Fed. R. Evid. 201(b)(2). We reject the
Commissioner’s argument that judicial notice is not appropriate because ALJ
Elliott’s decision is not material. The grant of benefits is material because it bears
“directly and substantially” on whether Evans was in fact disabled during the time
period relevant to ALJ Adams’s consideration. See Luna v. Astrue, 623 F.3d 1032,
1034 (9th Cir. 2010) (internal quotation marks omitted).

                                           2
conclusions regarding whether he was “disabled.” There is no evidence that

Evans’s health deteriorated during the eight months between ALJ Adams’s

determination that he was not disabled to the time that ALJ Elliott found him to be

disabled. Although ALJ Elliott’s decision was based on some new medical

evidence that was not introduced at the hearing before ALJ Adams, the decisions

were based largely on the same long-standing medical conditions and subjective

complaints from Evans. While ALJ Adams rejected Evans’s testimony on the

intensity, persistence, and limiting effects of the symptoms of these impairments,

ALJ Elliott found his testimony on these topics to be “generally credible.” Given

the discrepancies between the two decisions, “further consideration of the factual

issues is appropriate to determine whether the outcome of the first application

should be different.” Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010) (“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.”); 42 U.S.C. § 405(g) (stating

that remand is appropriate if “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”).


                                          3
      The Commissioner’s reliance on Bruton v. Massanari, 268 F.3d 824 (9th

Cir. 2001), is misplaced. In contrast to Bruton, we cannot on this record easily

reconcile the conflicting decisions by ALJ Adams and ALJ Elliott. Because it

appears that some of the same or similar evidence was presented in both hearings,

we cannot determine on the record before us whether the two decisions are

reconcilable or inconsistent. Thus, remand for further consideration is the proper

remedy.

      We therefore vacate the district court’s decision and remand to the district

court with instructions to remand to the Commissioner for consideration of

whether the outcome as to Evans’s 2003 application should be different. We need

not and do not reach any other issues urged by the parties on appeal.

      VACATED AND REMANDED.




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