                                                                            FILED
                               NOT FOR PUBLICATION                           APR 12 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                           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.

      *
       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).
        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.2 We have reviewed the record and find no error in this

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,3 the

medical records and the conservative course of treatment4 sufficiently supported

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

were.

        1
       See Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005); Tidwell v. Apfel,
161 F.3d 599, 602 (9th Cir. 1999).
        2
            Tidwell, 161 F.3d at 601.
        3
            See Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007).
        4
        Parra v. Astrue, 481 F.3d 742, 750–51 (9th Cir. 2007) (conservative course
of treatment and medical records); Rollins v. Massanari, 261 F.3d 853, 857 (9th
Cir. 2001) (medical records).

                                             2
      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.5 Particularly because we review the district court’s decision regarding the

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

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.7 Based

upon the record that was before the ALJ, we disagree with the assertion that the



      5
        We note that the Appeals Council did not indicate that it would consider
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).
      6
          See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).
      7
       For the first time on appeal, Lay asserts that what he did as a monk was not
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
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,8 and after reviewing the opinion of a

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

Lay10 nor discussed. In fact, the Appeals Council specifically mentioned only one

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



      8
       See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir.
2004); Thomas v. Barnhart, 278 F.3d 947, 956–57 (9th Cir. 2002).
      9
      Lay asserts that the hypotheticals put to the vocational expert were not
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).
      10
           See 20 C.F.R. 416.1476(b)(1).

                                           4
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.11 We are, therefore, constrained to reverse and remand to

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.




         11
              See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1229 (9th Cir.
2009).

                                             5
