Staley v. Massanari

17 F. App'x 609

Opinions

MEMORANDUM

**

Plaintiff Ula Staley appeals the judgment of the district court, affirming a final decision of the Commissioner of Social Security (Commissioner) that Plaintiff was not disabled on or before June 29, 1996, and is therefore not entitled to Social Security disability insurance benefits. An Administrative Law Judge (ALJ) found Plaintiff not disabled. She sought review from the Appeals Council and submitted new evidence, including a Medical Source Statement from a treating doctor and a vocational assessment based on it. The Appeals Council denied review, making the ALJ’s decision final. The district court affirmed. We now reverse and remand with directions that the ALJ reconsider the case in the light of the additional evidence.

The evidence was new, and it relates to the period in question. The only disputed issue is whether the additional evidence was material. See 20 C.F.R. § 404.970(b) (listing criteria for Appeals Council to consider new evidence). The Appeals Council apparently concluded that the evidence was not material when it stated that the evidence provided no basis for changing the ALJ’s decision. See Booz v. Sec’y of Health & Human Sews., 734 F.2d 1378, 1380-81 (9th Cir.1984) (new evidence is material when it creates a reasonable possibility that the outcome of the case would be different).

We disagree. Reviewing the record as a whole, we conclude that this standard is met.

The Commissioner argues for several reasons that the evidence is not material. First, he asserts that Dr. Lieuallen was not a treating physician, but the record shows that he saw her more than once, tested her, and prescribed medications for her.¹

Second, the Commissioner argues that the form is conclusory and does not contain medical documentation. Even though the Statement is cursory, it is not robbed of all probative value for that reason alone; its conclusions should be read in conjunction with the medical documentation previously provided by the same doctor.

Third, the Commissioner notes that the claimant solicited the Statement and other evidence after the ALJ’s adverse decision. Again, that reason is not necessarily a ground to discount new evidence entirely, particularly when (as here) the claimant was unrepresented until after the ALJ issued the decision.

At oral argument, the Commissioner also contended that the Statement is internally inconsistent because it opines that Plaintiff has been capable of performing “sustained” sedentary work (8 hours a day, 5 days a week) but is “markedly limited” in her “ability to complete a normal workday and workweek without interruptions from medically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods.” Assuming that we properly can consider this new argument, it is not dispositive. The first comment answers a question pertaining to “the exertional requirements” of sedentary jobs, while the second comment answers a question pertaining to “non-ex-ertional limitations.”

REVERSED and REMANDED to the district court with instructions to remand to the ALJ under sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this disposition.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9 th Cir. R. 36-3.

1 . The vocational assessment was based on Dr. Lieuallen’s Statement; its persuasiveness therefore is derivative of the persuasiveness of the Statement.