FILED
NOT FOR PUBLICATION APR 20 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KELLY ANN WORDEN, No. 11-15116
Plaintiff - Appellant, D.C. No. 1:09-cv-00868-SMS
v.
MEMORANDUM*
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Sandra M. Snyder, Magistrate Judge, Presiding
Argued and Submitted March 16, 2012
San Francisco, California
Before: WALLACE and BEA, Circuit Judges, and BENNETT, District Judge.**
Plaintiff-Appellant Kelly Ann Worden appeals from the district court’s order
affirming the administrative denial of her application for supplemental security
income (SSI) disability benefits. Worden argues that the administrative law judge
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Mark W. Bennett, District Judge for the U.S. District
Court for the Northern District of Iowa, sitting by designation.
(ALJ) improperly rejected a treating physician’s opinion that she suffered from
disabling mental impairments and that, contrary to the conclusion of the Appeals
Council when it denied further review, additional evidence that she submitted to
the Appeals Council would have changed the outcome. We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
We review de novo a district court’s judgment upholding the denial of social
security benefits. Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). “We will
‘set aside a denial of benefits only if it is not supported by substantial evidence or
is based on legal error.’” Id. (quoting Bray v. Comm’r of Soc. Sec. Admin., 554
F.3d 1219, 1222 (9th Cir. 2009)). Although we do not have jurisdiction to review
the Appeals Council’s denial of further review, we may consider additional
evidence presented for the first time to the Appeals Council when reviewing the
agency’s disability determination. Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d
1228, 1231-32 (9th Cir. 2011).
Here, the ALJ gave specific, legitimate reasons for rejecting the treating
physician’s opinions, including the treating physician’s reliance on subjective
comments by Worden, whose credibility the ALJ had already discounted, see
Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008), and the lack of support
for his opinions in his own treatment records, the longitudinal record, and
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Worden’s report of her daily activities. See Stubbs–Danielson v. Astrue, 539 F.3d
1169, 1175 (9th Cir. 2008); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190,
1195 (9th Cir. 2004); Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995).
Similarly, the additional evidence submitted only to the Appeals Council that
existed prior to the date of the ALJ’s hearing is also contrary to other treatment
records, evaluations, and Worden’s daily activities, and lacks a detailed analysis of
the relationship between any mental limitations and any work impairments.
Worden did not attempt to explain how additional evidence that did not even exist
at the time of the ALJ’s hearing demonstrated that she suffered from “severe”
impairments at or before the date of the ALJ’s hearing. See Mayes v. Massanari,
276 F.3d 453, 462 (9th Cir. 2001). We agree with the Appeals Council that there
was no “reasonable possibility” that the additional evidence would have changed
the outcome of the administrative hearing. See Luna v. Astrue, 623 F.3d 1032,
1034 (9th Cir. 2010); Mayes, 276 F.3d at 462.
Worden has failed to demonstrate that the ALJ’s decision was not supported
by substantial evidence or was based on legal error, considering both the evidence
before the ALJ and the additional evidence submitted only to the Appeals Council.
Taylor, 659 F.3d at 1232; Berry, 622 F.3d at 1231.
AFFIRMED.
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