Staley

I respectfully dissent. The Appeals Council (“Council”) has an obligation to *611 provide “specific and legitimate reasons” for rejecting the medical opinion of a treating or examining physician only when the Council reviews or is required to review the case. See Ramirez v. Shalala, 8 F.3d 1449, 1451-54 (9th Cir.1993) (requiring the Council to provide specific and legitimate reasons only after recognizing that the Council considered the case on the merits). In this case, the Council declined to grant Ms. Staley’s request for review.

Accordingly, where the claimant is seeking review based on evidence not presented to the ALJ, the Council must only provide such review when the submitted evidence is: 1) new, 2) material, and 3) relates to the period on or before the date of the administrative law judge hearing decision. See Ramirez, 8 F.3d at 1452 (relying on 20 C.F.R. § 404.970 (b)).

I concur with the majority that the Medical Source Statement (the “Statement”) was new and relates to the period in question. I, however, respectfully disagree with the majority’s conclusion that the Statement is material evidence.

Evidence is material only where it creates a reasonable possibility…

MEMORANDUM **

*610 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…