Herbert RAMIREZ, Plaintiff-Appellant, v. Donna SHALALA, Secretary of Health and Human Services, Defendant-Appellee

8 F.3d 1449 42 Soc.Sec.Rep.Ser. 548, Unempl.Ins.Rep. (CCH) P 17547A Herbert RAMIREZ, Plaintiff-Appellant, v. Donna SHALALA, Secretary of Health and Human Services, * Defendant-Appellee. No. 92-55163. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 15, 1993. Decided Nov. 9, 1993. Robert Hoad, Henry N. Ernecoff, Matty M. Sandoval, Robert Hoad, A Professional Law Corporation, San Diego, CA, for plaintiff-appellant Herbert Ramirez. Dennis J. Mulshine, Asst. Regional Counsel, Dept. of Health and Human Services, San Francisco, CA, for defendant-appellee Donna Shalala. Appeal from the United States District Court for the Southern District of California, Rudi M. Brewster, District Judge, Presiding. Before: WOOD, Jr., ** REINHARDT, and RYMER, Circuit Judges. REINHARDT, Circuit Judge: 1 Herbert Ramirez appeals the denial of Disability Insurance and Supplemental Security Income benefits. An Administrative Law Judge ("ALJ") found him not disabled. He requested that the Appeals Council review his case, and submitted to that body, inter alia, an additional report from his treating psychologist. The Appeals Council declined to review the ALJ's decision, making it final.…

Herbert Ramirez appeals the denial of Disability Insurance and Supplemental Security Income benefits. An Administrative Law Judge (“ALJ”) found him not disabled. He requested that the Appeals Council review his case, and submitted to that body, inter alia, an additional report from his treating psychologist. The Appeals Council declined to review the ALJ’s decision, making it final. Ramirez appealed to the district court, which granted summary judgment in favor of the Secretary. 1 We now reverse and remand for the payment of benefits. 2

I.

We review the judgment of the district court de novo. Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir.1991) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir.1989)). In so doing, we consider the rulings of both the ALJ and the Appeals Council. Although the ALJ’s decision became the Secretary’s final ruling when the Appeals Council declined to review it, the government does not contend that the Appeals Council should *1452 not have considered the additional report submitted after the hearing, or that we should not consider it on appeal. Moreover, although the Appeals Council “declined to review” the decision of the ALJ, it reached this…

dissenting:

I would affirm because there is no evidence that Ramirez’s “dysthymic disorder” precluded him from returning to suitable work or was so severe as to be disabling. See Perez Torres v. Secretary of HHS, 890 F.2d 1251, 1254-55 (1st Cir.1989) (“a dys-thymic disorder is a chronic mood disturbance involving either a depressed state or a loss of interest or pleasure in almost all usual activities and pastimes_ It is a less severe condition than a major depressive episode and occupational impairment is usually mild to moderate because of the chronic, rather than severe nature of the syndrome.”); Sample v. Schweiker, 694 F.2d 639, 642-43 (9th Cir.1982) (“[t]he existence of emotional disorder ... is not per se disabling .... In addition, there must be proof of the impairment’s disabling severity.” (quotation omitted).) Even if Dr. Townsend’s testimony had been fully credited, Ramirez has not shown that he would have established that he was “disabled” despite any functional limitations caused by his emotional disorder. Therefore I respectfully dissent.