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NOT FOR PUBLICATION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. COURT OF APPEALS
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 course 4

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 this 2

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, the 3

medical records and the conservative course of treatment sufficiently supported 4

the ALJ’s determination that Lay’s limitations were not as great as he said they

were. 
We note that the Appeals Council did not indicate that it would consider 5

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 not 7

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 the 5

Commissioner’s disability determination de novo, in light of the Commissioner’s 6

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. Based 7

upon the record that was before the ALJ, we disagree with the assertion that the
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 not 9

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 a 8

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 one 10

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
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 to 11

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.