NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 02 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SHIRLEY K. KLAHN, No. 12-16140
Plaintiff - Appellant, D.C. No. 3:10-cv-08201-MHB
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
Michelle H. Burns, Magistrate Judge, Presiding
Argued and Submitted April 11, 2014
San Francisco, California
Before: KLEINFELD, NGUYEN, and WATFORD, Circuit Judges.
We need not resolve at this time Appellant Shirley Klahn’s arguments
challenging the administrative law judge’s (ALJ) rulings finding her not fully
credible and rejecting her doctors’ opinions about the extent of her disability.
Even if Klahn’s arguments on those issues fail, it appears she may nonetheless be
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Page 2 of 2
entitled to benefits under our holding in Lounsburry v. Barnhart, 468 F.3d 1111
(9th Cir. 2006). The ALJ has not yet addressed Lounsburry’s impact on this case,
so we remand to the ALJ for further consideration of Klahn’s claim in light of
Lounsburry.
The Commissioner contends that Klahn waived any argument based on
Lounsburry by not raising it until she submitted a Rule 28(j) letter shortly before
oral argument. We may consider an argument not presented in the opening brief if
“the failure to raise the issue properly did not prejudice the defense of the opposing
party.” United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992). The
Commissioner points to no prejudice caused by Lounsburry’s late appearance,
which is not surprising. The Commissioner was aware of Lounsburry, having cited
the case in her own brief. If the Commissioner believes there are grounds for
denying Klahn benefits even under the rule established in Lounsburry, she will
have a full opportunity to raise those arguments before the ALJ on remand.
The parties shall bear their own costs on appeal.
VACATED AND REMANDED.
FILED
Klahn v. Colvin, 12-16140 MAY 02 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
KLEINFELD, Senior Circuit Judge, dissenting:
I respectfully dissent. Substantial evidence supports the ALJ’s findings as to
Klahn’s credibility and the limited weight given to Klahn’s treating and examining
physicians. See Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457
(9th Cir. 1995).
Klahn’s argument under Lounsburry v. Barnhart, 468 F.3d 1111 (9th Cir.
2006) ought to be treated as waived because she did not raise it in her opening
brief. Klahn first made this argument in a Rule 28(j) letter citing Lounsburry, but
that case was decided six years before she submitted her brief on the merits. Klahn
has offered no excuse for making an entirely new argument after briefing. See
United States v. Gomez-Mendez, 486 F.3d 599, 606 n.10 (9th Cir. 2007).