FILED
NOT FOR PUBLICATION
JUN 15 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TAMMY LYNN ROWAN, No. 14-16367
Plaintiff - Appellant, D.C. No. 2:13-cv-00085-SRB
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security Administration,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Argued and Submitted May 11, 2016
San Francisco, California
Before: WARDLAW, PAEZ, and BEA, Circuit Judges.
Tammy Lynn Rowan (“Rowan”) appeals the district court’s judgment
affirming the denial of disability benefits by the Commissioner of the Social
Security Administration (“Commissioner”). We have jurisdiction pursuant to 28
U.S.C. § 1291. We review de novo a district court’s judgment upholding a
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
decision by the Commissioner that denies benefits to an applicant. Batson v.
Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). We reverse and
remand for a new hearing.
1. Rowan last worked in March 1991, and her Date Last Insured (“DLI”) was
June 30, 1995. See 42 U.S.C. § 423(c)(1). To qualify for benefits, Rowan must
establish onset of disability between the day after she last worked (March 31,
1991) and her DLI (June 30, 1995). See id. Rowan first applied for disability
benefits in 1999, alleging an onset of disability between March 31, 1991 and June
30, 1995.1 Her application was denied in 2000. In 2006, she filed a second
application, alleging an onset of disability on March 31, 1991. The date of
Rowan’s second application was beyond the four-year limitation for reopening a
prior disability application. 20 C.F.R. § 404.988(b). Nonetheless, as the
administrative law judge (“ALJ”) and Appeals Council determined, an applicant
may file a subsequent application if she provides new evidence material to the
disability claim.
1
The 1999 application is not contained in the Certified Administrative
Record, and it is not clear from the other materials in the record what specific date
Rowan alleged as her disability onset date in this initial application. However,
because Rowan last met the insured status requirements of the Social Security Act
on June 30, 1995, she would have been required to establish onset of disability
before that date for the 1999 application.
2
After extended administrative proceedings, the Appeals Council remanded
Rowan’s claim to an ALJ for a hearing, which was held on November 10, 2010.
At the hearing, Rowan’s attorney asked the ALJ whether he had reviewed the prior
file, and the ALJ indicated that he only had an electronic file. After the hearing,
Rowan’s attorney advised the ALJ that the electronic file did not contain the prior
record. The ALJ issued an unfavorable decision.
In his decision, the ALJ determined that res judicata did not bar Rowan’s
claim. The ALJ explained that he had “thoroughly reviewed the prior file and
although much of the evidence submitted by the claimant’s attorney post-dates the
claimant’s date last insured . . . , the current record contains new and material
evidence [as] to the severity and persistence of the symptoms of” the medically
determinable impairments of obesity and depression. In considering the merits of
Rowan’s disability claim, however, the ALJ did not consider the evidence from the
prior file and did not list any medical records from the prior file as exhibits.
Because the ALJ did not consider these records in making the ultimate disability
determination, the Commissioner did not include the prior file records in the
Certified Administrative Record for this case.
2. Rowan argues that the ALJ erred in failing to consider medical evidence
from her prior file in making his disability determination. We agree. The ALJ
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found that res judicata did not bar Rowan’s claim because she had submitted “new
and material evidence [as] to the severity and persistence of the symptoms of” her
impairments during the 1991–1995 period. In so ruling, the ALJ properly
recognized that new evidence regarding a claimant’s impairments after the DLI can
be relevant to assessing those impairments prior to the DLI. See Smith v. Bowen,
849 F.2d 1222, 1225 (9th Cir. 1988); see also Tobeler v. Colvin, 749 F.3d 830, 833
(9th Cir. 2014); Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1228–29 (9th Cir.
2010).
The ALJ concluded that these new records were relevant for establishing the
“severity and persistence” of Rowan’s medically determinable impairments of
obesity and depression. Nonetheless, in evaluating the merits of Rowan’s
disability claim, the ALJ failed to consider evidence of these impairments from the
March 1991 through June 1995 time period contained in the prior file. “The ALJ
in a social security case has an independent duty to fully and fairly develop the
record and to assure that the claimant's interests are considered.” Tonapetyan v.
Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (citation omitted). In this case, the
record as a whole included the records from the prior file, and the ALJ was
required to consider those records in assessing the cumulative impact of the new
and the old evidence.
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Because the ALJ erred in failing to consider the prior record evidence in
making his disability determination, we reverse the judgment of the district court
and remand with instructions to remand to the Commissioner. On remand, the
agency shall conduct a new hearing on Rowan’s disability claim and shall consider
all of the evidence—including the prior record evidence—in making a disability
determination.
3. Because we reverse the judgment of the district court, we do not address the
remaining issues raised by Rowan on appeal.
REVERSED and REMANDED.
5