                                                                              FILED
                            NOT FOR PUBLICATION                               DEC 28 2012

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


DUNG T. NGUYEN,                                  No. 10-17939

               Plaintiff - Appellant,            D.C. No. 5:09-cv-02916-JF

  v.
                                                 MEMORANDUM*
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,

               Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Northern District of California
                     Jeremy D. Fogel, District Judge, Presiding

                     Argued and Submitted December 19, 2012
                               Pasadena, California

Before:        ALARCÓN and SILVERMAN, Circuit Judges, and GARBIS, Senior
               District Judge.**




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The Honorable Marvin J. Garbis, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.
      Dung T. Nguyen appeals from the district court’s decision granting summary

judgment in favor of the Commissioner of Social Security (“Commissioner”) and

affirming the Commissioner’s final decision, which concluded that Nguyen is not

entitled to Disability Insurance Benefits or Supplemental Security Income under

Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-434, 1381-1383.

We have jurisdiction under 28 U.S.C. § 1291, and we vacate the district court’s

judgment and remand with instructions.

      A disability claim may be remanded for consideration of new evidence “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.” 42 U.S.C. § 405(g). Nguyen contends that this Court should remand

his case for consideration of a subsequent, fully favorable, disability determination

by a different administrative law judge (“ALJ”). Although Nguyen did not raise

this contention before the district court or in his opening brief, we exercise our

discretion to consider this issue because Luna v. Astrue, 623 F.3d 1032 (9th Cir.

2010), recently clarified this area of the law after the district court’s decision and

because the issue has been fully explored in the supplemental briefs filed by the

parties pursuant to this Court’s order and in oral argument. See Merrick v. Paul

Revere Life Ins. Co., 500 F.3d 1007, 1013 (9th Cir. 2007) (exercising its discretion


                                           2                                     10-17939
to consider a claim raised for the first time in a reply brief where “the appellee

ha[d] not been misled and the issue ha[d] been fully explored”); Greger v.

Barnhart, 464 F.3d 968, 973 (9th Cir. 2006) (recognizing that there is an exception

“to the general rule that the court will not consider an issue raised for the first time

on appeal . . . when a new issue arises while appeal is pending because of a change

in the law”).

      In Luna, a second ALJ issued a decision granting the claimant’s subsequent

application for disability benefits while her appeal of the denial of her first

application was pending. 623 F.3d at 1034. The second ALJ determined that the

onset date of her disability occurred one day after the initial ALJ issued his

decision finding that she was not disabled. Id. This Court held that remand was

appropriate under 42 U.S.C. § 405(g), where a subsequent, approved disability

application had an onset date that was close in time to the denial under review and

where it was unclear from the record whether the two decisions were reconcilable.

Luna, 623 F.3d at 1034-35.

      As in Luna, Nguyen was found to be disabled by a second ALJ shortly after

the ALJ issued the decision denying benefits that is on appeal. Because “[w]e

cannot conclude based on the record before us whether the decisions concerning

[Nguyen] were reconcilable or inconsistent,” id. at 1035, we reverse the district


                                           3                                      10-17939
court’s grant of summary judgment in favor of the Commissioner and remand with

instructions to remand this matter to the ALJ. In its remand order, the district court

shall direct that the parties be allowed to present any new evidence submitted

during the second proceeding that pertains to the period of disability for the first

application. In addition, the district court shall direct the ALJ to reconsider

whether Nguyen was actually disabled during the period of time relevant to his

first application in light of any new evidence of disability.

      VACATED and REMANDED.




                                           4                                      10-17939
