United States v. 2010-04-12 | 08-56458 | RIN LAY V. MICHAEL ASTRUE | nonprecedential | memorandum…

This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Circuit Rule 36-3.
The panel unanimously finds this case suitable for decision without oral**
argument. Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RIN LAY, ) No. 08-56458
)
Plaintiff – Appellant, ) D.C. No. 3:07-CV-01112-JLS-NLS
)
v. ) MEMORANDUM*
)
MICHAEL J. ASTRUE, )
)
Defendant – Appellee. )
)
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Submitted April 5, 2010**
Pasadena, California
Before: FERNANDEZ, SILVERMAN, and GRABER, Circuit Judges.
Rin Lay appeals the district court’s judgment, which affirmed the
Commissioner of Social Security’s denial of Supplemental Security Income
benefits. We reverse and remand.
FILED
APR 12 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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See Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005); Tidwell v. Apfel,1
161 F.3d 599, 602 (9th Cir. 1999).
Tidwell, 161 F.3d at 601.2
See Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007).3
Parra v. Astrue, 481 F.3d 742, 750–51 (9th Cir. 2007) (conservative course4
of treatment and medical records); Rollins v. Massanari, 261 F.3d 853, 857 (9th
Cir. 2001) (medical records).
2
Lay first asserts that the Administrative Law Judge failed to develop the
record. We disagree. We do agree that the ALJ has the obligation to develop the
record. See Widmark v. Barnhart, 454 F.3d 1063, 1068 (9th Cir. 2006);
Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). However, where the
record is adequate and not ambiguous, the ALJ is not required to proceed further1
and based upon the evidence at hand may decide whether the claimant has
sustained his burden. We have reviewed the record and find no error in this2
respect.
Lay also asserts that the ALJ erred when he found that Lay’s subjective pain
and limitations testimony was not wholly credible. Again, we disagree. While
there were underlying conditions that could be expected to produce pain, the3
medical records and the conservative course of treatment sufficiently supported4
the ALJ’s determination that Lay’s limitations were not as great as he said they
were.

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We note that the Appeals Council did not indicate that it would consider5
that evidence. See 20 C.F.R. § 416.1470(b). However, it did not expressly return
the materials to Lay. See 20 C.F.R. § 416.1476(b)(1).
See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).6
For the first time on appeal, Lay asserts that what he did as a monk was not7
gainful work activity. See 20 C.F.R. § 416.972(b). We decline to consider that
newly minted argument. See Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir.
2006); Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999).
3
Lay also claims that the district court erred when it held that Lay had to
show good cause for failing to timely submit certain evidence to the ALJ before the
district court could consider that evidence. See 42 U.S.C. § 405(g). We need not
consider that claim because the Commissioner now concedes that all of the
evidence should be taken into account; it had been submitted to the Appeals
Council. Particularly because we review the district court’s decision regarding the5
Commissioner’s disability determination de novo, in light of the Commissioner’s6
concession, we will consider that evidence. Lay claims that the Commissioner, at
both the ALJ level and the Appeals Council level, erred when he denied benefits.
We agree in part.
The ALJ determined that based upon what was before him, Lay had the
residual functional capacity to perform his prior work as a Buddhist monk. Based7
upon the record that was before the ALJ, we disagree with the assertion that the

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See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir.8
2004); Thomas v. Barnhart, 278 F.3d 947, 956–57 (9th Cir. 2002).
Lay asserts that the hypotheticals put to the vocational expert were not9
complete. However, they did cover the limitations accepted by the ALJ. See
Robbins v. Soc. Sec. Admin., 466 F.3d 880, 886 (9th Cir. 2006).
See 20 C.F.R. 416.1476(b)(1).10
4
ALJ erred. He was not required to discuss each piece of evidence, and it does not
appear that he actually rejected probative evidence. See Vincent ex rel. Vincent v.
Heckler, 739 F.2d 1393, 1394–95 (9th Cir. 1984) (per curiam). Rather, the ALJ
properly resolved conflicts in the evidence, and after reviewing the opinion of a8
vocational expert, determined that Lay was not entitled to benefits. Substantial
evidence supported those determinations.9
However, we agree as to the Appeals Council’s determination. The
evidence before it showed that Lay had deficits not considered by the ALJ. That
evidence, among other things, detailed severe cervical spine problems and major
depression based upon new reports, which the Appeals Council neither returned to
Lay nor discussed. In fact, the Appeals Council specifically mentioned only one10
report (by Dr. Harry C. Henderson III) and declared that the report was not
supported by evidence in the record. However, the Appeals Council made no
reference to the cervical spine MRI of May 1, 2006, or to the reports of two other

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See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1229 (9th Cir.11
2009).
5
doctors (Milton Lessner and James S. Grisolia), all of which did lend support to
Dr. Henderson’s opinion. It appears that at least some of the additional materials
might well affect the disability decision, but we are not in a position to properly
make that determination. We are, therefore, constrained to reverse and remand to11
the district court with instructions that it further remand to the Commissioner for
further proceedings in which all of the additional information is considered.
REVERSED and REMANDED.

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