                                                                           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                               NOT FOR PUBLICATION                          JUN 04 2013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


                                            2                                     12-55546
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.


                                          3                                       12-55546
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).




                                          4                                    12-55546
      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.




                                           5                                      12-55546
