                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             SEP 09 2013

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

SANDRA EILRICH,                                  No. 11-16877

              Plaintiff - Appellant,             D.C. No. 2:09-cv-02697-JFM

  v.
                                                 MEMORANDUM*
COMMISSIONER OF SOCIAL
SECURITY,

              Defendant - Appellee.


                   Appeal from the United States District Court
                       for the Eastern District of California
                   John F. Moulds, Magistrate Judge, Presiding

                      Argued and Submitted March 14, 2013
                           San Francisco, California

Before: FISHER and NGUYEN, 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.
      Marc Eilrich1 appealed the district court’s affirmance of a final

administrative denial of his application for disability insurance benefits under the

Social Security Act (“SSA”), 42 U.S.C. § 423. After the Appeals Council denied

review of his claim, Eilrich appealed to the United States District Court for the

Eastern District of California, which affirmed the denial of his application. We

have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand.

      1.     Eilrich’s application alleged disability since July 1, 2002, due to

irritable bowel syndrome, bilateral groin pain, diverticulitis, and colonic polyps, as

well as pain in his back, hands and knees. The Administrative Law Judge (“ALJ”)

determined that Eilrich was ineligible for disability insurance benefits because he

did not have a “severe” impairment lasting for at least 12 consecutive months prior

to the expiration of his disability coverage on December 31, 2002. The ALJ

determined that Eilrich’s medically determinable impairments could reasonably be

expected to produce his alleged symptoms, but that Eilrich’s statements regarding

the severity of his symptoms were “not entirely credible.” Having discredited

Eilrich’s testimony on the issue of severity, the ALJ went on to conclude that



      1
        Marc Eilrich died on February 14, 2012. His widow, Sandra Eilrich,
succeeds him as claimant under the Social Security Act. See Form SSA-1724-F4
(01-2010). On September 4, 2013, we granted Sandra Eilrich’s motion to
substitute her as Appellant in this action.
                                          2
objective medical evidence in the record did not indicate that Eilrich’s impairment

was severe prior to or on December 31, 2002, and consequently, that he was

ineligible for disability benefits. See 42 U.S.C. § 423(c)–(d); 20 C.F.R. § 404.101;

Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998). We need not decide whether

the ALJ’s severity finding was supported by substantial evidence in the record

because we conclude that in any event the case should be remanded for

reconsideration in light of newly discovered evidence.

      2.     “[I]n determining whether to remand a case in light of new evidence,

[we] examine[] both whether the new evidence is material to a disability

determination and whether a claimant has shown good cause for having failed to

present the new evidence to the ALJ earlier.” Mayes v. Massanari, 276 F.3d 453,

462 (9th Cir. 2001). “[E]vidence is sufficiently material to require a remand[] only

where there is a reasonable possibility that the new evidence would have changed

the outcome of the . . . determination . . . .” Booz v. Sec’y of Health and Human

Servs., 734 F.2d 1378, 1380 (9th Cir. 1984) (internal quotation marks omitted).

We review the district court’s materiality determination de novo, and its decision

as to good cause for abuse of discretion. Mayes, 276 F.3d at 462.

      In October 2010, Eilrich underwent exploratory laparoscopic surgery, which

revealed serious bilateral adhesions likely caused by diverticulosis, a previous


                                          3
appendectomy, and scarring from a 1995 groin hernia. The presence of serious

intestinal adhesions in 2010 is probative of the actual severity of Eilrich’s

impairment in 2002. See, e.g., Sampson v. Chater, 103 F.3d 918, 922 (9th Cir.

1996) (“[M]edical evaluations made after the expiration of a claimant’s insured

status are relevant to an evaluation of the pre-expiration condition.” (alteration in

original) (quoting Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988))).

Moreover, the new evidence is also relevant to the ALJ’s adverse credibility

finding, which was based at least in part on statements by Eilrich’s treating

physician suggesting that his reported symptoms were “out of proportion to the

[objective medical] findings.”

      We conclude that there is a reasonable possibility that the 2010 medical

results would have changed the outcome of Eilrich’s application for disability

benefits. Therefore, the district court erred in concluding that the evidence was

insufficiently material to warrant remand. Further, the district court abused its

discretion by failing to reach the issue of good cause—it goes without saying that

Eilrich could not possibly have introduced the results of his 2010 surgery into

evidence at his 2007 hearing. We conclude that the ALJ should reconsider—with

the benefit of this new evidence—whether Eilrich’s impairment was “severe”




                                           4
within the meaning of the SSA prior to the expiration of his disability coverage in

2002.

        REVERSED and REMANDED.




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