NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHAUN G. ALLEN, 

Plaintiff-Appellant, 

 v. 

KILOLO KIJAKAZI, Acting Commissioner 

of Social Security, 

Defendant-Appellee.

No. 22-35056 

D.C. No. 3:21-cv-05003-SKV 

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

Sarah Kate Vaughan, Magistrate Judge, Presiding

Submitted March 29, 2023**

Seattle, Washington

Before: NGUYEN and HURWITZ, Circuit Judges, and GUTIERREZ,*** Chief 

District Judge.

Shaun Allen appeals from the district court’s order affirming the 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Philip S. Gutierrez, Chief United States District Judge 

for the Central District of California, sitting by designation.

FILED

MAR 31 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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Commissioner of Social Security’s denial of disability benefits. We have 

jurisdiction under 28 U.S.C. § 1291. We review the district court’s decision de 

novo and uphold the Commissioner’s decision unless it is not supported by 

substantial evidence or is based on legal error. Woods v. Kijakazi, 32 F.4th 785, 

788 (9th Cir. 2022). For the following reasons, we affirm. 

1. The ALJ’s decision to discredit Dr. Gritzka’s opinion on Allen’s 

physical limitations is supported by substantial evidence. Because Allen filed his 

disability claim on September 24, 2018, the ALJ correctly applied the 2017 revised 

Social Security Administration regulations in evaluating Dr. Gritzka’s opinion. 

See id. at 789 (explaining that the revised regulations apply to claims filed on or 

after March 27, 2017). As required, the ALJ considered both the “supportability” 

and “consistency” of Dr. Gritzka’s opinion, see 20 C.F.R. § 404.1520c(a); Woods, 

32 F.4th at 791–92, finding it unpersuasive because while the opinion was 

supported by examination notes, it was “not consistent with the longitudinal 

evidence of record.” 

Specifically, Dr. Gritzka opined that Allen had significant restrictions on 

how long he could sit, stand, and walk; on the amount of weight he could lift and 

carry; and on the amount of rest breaks and absences from work Allen would need.

However, the ALJ found those opinions to be inconsistent with objective medical 

evidence showing mild back spasms, mild lumbar spine degenerative changes, hip 
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strength of 4-/5, periods of normal gait, negative straight leg testing, “improved” 

lumbar radiculopathy, and improvement from surgical intervention and physical 

therapy. The ALJ also found the opinion inconsistent with Allen’s own statements 

about his ability to do some house chores and travel by car. Taken together, the 

ALJ reasonably concluded that the mild medical evidence was inconsistent with

Dr. Gritzka’s opinion about more severe functional limitations. See Woods, 32 

F.4th at 793 n.4, 793–94 (holding that an ALJ did not err in discounting a medical 

opinion that was “supported” but not “consistent”).1

2. The additional medical evidence that Allen submitted to the Appeals 

Council does not affect the ALJ’s disability determination. The ALJ made the

determination through April 20, 2020, but the new treatment records were dated 

between May 22 and August 27, 2020, and did not indicate that they related back 

to the disability period. Allen does not argue that the evidence was retroactive; he

argues only that evidence showed that “as time went on,” the record tended to 

support Dr. Gritzka’s opinion. Further, the medical records note imaging results

showing mild to moderate physical issues, but do not describe functional 

1 Allen also argues that in discrediting Dr. Gritzka’s opinion, the ALJ should not 

have itself interpreted the medical record, but rather should have relied on an 

interpretive opinion. That argument has no weight. See Woods, 32 F.4th at 792–

93 (holding that substantial evidence supported the ALJ’s decision to find a 

medical opinion unpersuasive based on the ALJ’s evaluation of the medical 

record). In fact, Allen concedes that an ALJ may rely on the medical record.
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limitations that would undermine the ALJ’s residual functional capacity 

determination of sedentary work with limitations, 20 C.F.R. § 404.1567(a). Allen 

is thus not entitled to a remand based on the new medical evidence. See Brewes v. 

Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 2012) (holding that 

claimants can submit new and material evidence to the Appeals Council and 

require it to consider the evidence, “so long as the evidence relates to the period on 

or before the ALJ’s decision”); cf. Bruton v. Massanari, 268 F.3d 824, 827 (9th 

Cir. 2001) (noting that new evidence is “material” under 42 U.S.C. § 405(g) if it 

‘“bears directly and substantially on the matter in dispute,’ and if there is a 

‘reasonable possibility that the new evidence would have changed the outcome of 

the determination’” (quoting Booz v. Sec’y of Health & Human Servs., 734 F.2d 

1378, 1380 (9th Cir. 1984) (cleaned up)). 

AFFIRMED.