Summary
holding that the Commissioner cannot rely on Appeals Council's summary denial of review in order to find harmless error in ALJ's failure to consider evidence of record
Summary of this case from Hess v. ColvinOpinion
No. 08-35661.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed September 8, 2009.
Eitan Kassel Yanich, Olympia, WA, for Plaintiff-Appellant.
David M. Blume, Assistant Regional Counsel, Social Security Administration Office of the General Counsel, Brian Kipnis, Assistant U.S., Office of the U.S. Attorney, Seattle, WA, for Defendant-Appellee.
Appeal from the United States District Court for the Western District of Washington, Benjamin H. Settle, District Judge, Presiding. D.C. No. 3:07-cv-05335-BHS.
Before: HAWKINS, McKEOWN and BYBEE, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Kenneth Taylor appeals from the district court's decision affirming the Commissioner's denial of his applications for Social Security disability and Supplemental Security Income disability benefits. Reviewing de novo, we reverse in part, affirm in part, and remand.
Taylor argues that the ALJ failed to properly develop the record because the ALJ did not consider Dr. Tosomeen's medical records, which Taylor's lawyer faxed to the ALJ after the hearing. The Commissioner responds that any error was harmless because the Appeals Council considered the records and held that the records did not warrant a change to the ALJ's decision. Because the Appeals Council did not explain why Dr. Tosomeen's records did not affect the result in Taylor's case, we have no basis upon which to determine whether the ALJ's error was harmless. For example, it is entirely unclear on the administrative record before us what effect, if any, the diagnosis of "failed neck syndrome" might have had on Taylor's residual functional capacity. Consequently, we reverse and remand in order for the ALJ to consider Dr. Tosomeen's records and to explain whether they change the analysis or result.
We do not embrace any of Taylor's other challenges to the ALJ's decision for the reasons given in the magistrate judge's report and recommendation, or because there is no merit to Taylor's arguments.
REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.
Each party shall bear its own costs on appeal.