FILED
NOT FOR PUBLICATION JUN 04 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARK RAYMOND QUESADA, No. 12-55546
Plaintiff - Appellant, D.C. No. 5:11-cv-00882-MLG
v.
MEMORANDUM *
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,**
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Marc L. Goldman, Magistrate Judge, Presiding ***
Submitted May 17, 2013 ****
Before: HUG, FARRIS, and LEAVY, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
Carolyn W. Colvin, Acting Commissioner of Social Security, is
substituted for her predecessor, Michael J. Astrue, Commissioner of Social
Security, pursuant to Fed. R.App. P. 43(c)(2).
***
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
****
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Mark Raymond Quesada appeals from the district court’s judgment
affirming the Commissioner of Social Security’s denial of his applications for
Social Security disability insurance benefits and supplemental security income
benefits under Titles II and XVI the Social Security Act. We have jurisdiction
pursuant to 28 U.S.C. § 1291. We affirm.
We review de novo the district court’s decision upholding the denial of
benefits. Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). We must affirm
the denial of benefits unless it is based on legal error or the findings of fact are not
supported by substantial evidence. Valentine v. Comm’r Soc. Sec. Admin., 574
F.3d 685, 690 (9th Cir. 2009).
Quesada argues generally that the Commissioner overlooked his physical
injuries and mental limitations. We reject Quesada’s argument because substantial
evidence supports the Commissioner’s decision that Quesada has the residual
functional capacity to perform his past relevant work and therefore he is not
disabled. See Berry, 622 F.3d at 1231.
More specifically, the administrative law judge (ALJ) properly determined
that Quesada provided insufficient objective support for his reported functional
limitations. Although Quesada stated that he used a cane and walker at times,
neither item was medically prescribed, and there was evidence that Quesada’s use
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of a cane and walker was inconsistent with his normal gait, good mobility, lack of
neurological defects, and normal muscle strength. See Chaudhry v. Astrue, 688
F.3d 661, 670-671 (9th Cir. 2012) (holding that the ALJ properly relied on medical
evidence undermining claimant’s subjective assessment of limitations). The ALJ
also properly found that Quesada’s daily activities, including driving, grocery
shopping, cooking, and helping his children with their homework, were not
consistent with his complaints of disabling symptoms and limitations. See Rollins
v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (ALJ may reject the claimant’s
testimony when inconsistent with the claimant’s daily activities and contrary to the
medical evidence.); Curry v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1990)
(claimant’s testimony about daily activities, including taking care of personal
needs, preparing easy meals, doing light housework and shopping for groceries,
may be seen as inconsistent with the presence of a disabling condition).
The ALJ also provided specific and legitimate reasons, supported by
substantial evidence, to discredit the opinion of examining physician Dr. Close in
favor of the opinion of consulting examining physician Dr. Sophon. Dr. Close’s
opinion was inconsistent with Dr. Sophon’s opinion, Dr. Close’s diagnosis of right
shoulder atrophy was not supported elsewhere in the record, Dr. Close failed to
explain how or why Quesada’s medications would limit his activities, and Dr.
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Close’s limitations on Quesada’s sitting, standing and walking were inconsistent
with Quesada’s own testimony on those points. See Lester v. Chater, 81 F.3d 821,
830-31 (9th Cir. 1995) (explaining which physicians’ opinions should be given
controlling weight); Burkhart v. Bowen, 856 F.2d 1335, 1339-40 (9th Cir. 1988)
(the ALJ properly rejected a medical opinion not supported by objective findings);
see also Chaudhry, 688 F.3d at 671 (stating that an ALJ need not accept the
opinion of any physician if that opinion is brief, conclusory, and inadequately
supported by clinical findings).
Finally, the district court properly concluded that the additional evidence
Quesada submitted to the Appeals Council would not have changed the outcome in
the case because it post-dated the ALJ’s decision and therefore was not relevant.
See Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 2012)
(the administrative record includes evidence submitted to and considered by the
Appeals Council, so long as the evidence relates to the period on or before the
ALJ’s decision); see also 20 C.F.R. § 404.970(b) (“If new and material evidence is
submitted, the Appeals Council shall consider the additional evidence only where it
relates to the period on or before the date of the administrative law judge hearing
decision.”); 20 C.F.R. § 416.1470(b) (same for SSI applications).
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Quesada contends for the first time on appeal that because he has depression,
anxiety, and difficulty with his memory, he was unable to give all information
regarding his physical injuries and mental conditions to the ALJ. We do not
consider issues raised for the first time on appeal, except to avoid manifest
injustice. Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006) (explaining that
this court may consider an issue raised for the first time on appeal only where
necessary to avoid a manifest injustice); Meanel v. Apfel, 172 F.3d 1111, 1115 (9th
Cir. 1999) (holding that, at least when claimants are represented by counsel, they
must raise all issues and evidence at their administrative hearings in order to
preserve them on appeal). There is no manifest injustice here.
AFFIRMED.
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