                                                                            FILED
                            NOT FOR PUBLICATION                              JUL 06 2011

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




                            FOR THE NINTH CIRCUIT

ANDREA HULME,                                    No. 10-35211

              Plaintiff - Appellant,             D.C. No. 2:08-cv-01627-RSM

  v.
                                                 MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
Social Security,

              Defendant - Appellee.

                   Appeal from the United States District Court
                      for the Western District of Washington
                   Ricardo S. Martinez, District Judge, Presiding

                            Submitted March 22, 2011 **

Before: SKOPIL, FARRIS, and LEAVY, Circuit Judges.

       Andrea Hulme appeals pro se the district court’s decision to affirm the

agency’s denial of her request for continued disability benefits. The district court

determined that Hulme’s substance abuse renders her ineligible for continued

benefits. We affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      In 1996 Congress amended the Social Security Act to preclude an award of

disability benefits whenever drug abuse is “a contributing factor material to the

Commissioner’s determination that the individual is disabled.” Parra v. Astrue,

481 F.3d 742, 744 (9th Cir. 2007) (quoting 42 U.S.C. § 423(d)(2)(C)). The key

factor in determining materiality is whether the claimant would still be found

disabled if the drug use stopped. Ball v. Massanari, 254 F.3d 817, 821 (9th Cir.

2001) (citing 20 C.F.R. § 404.1535)). An administrative law judge (ALJ)

concluded that Hulme’s substance abuse is a “contributing factor” because if she

stopped using drugs, she could return to a former occupation, or alternatively, she

could perform other jobs in the national economy.

      Substantial evidence supports the ALJ’s determination. Hulme has a long

history of substance abuse. She nonetheless argues she also suffers from post-

traumatic stress disorder (PTSD) which the ALJ mischaracterized as an “anxiety

disorder.” The ALJ did not, however, ignore Hulme’s PTSD or mischaracterize

the disorder. PTSD is an anxiety disorder and there are references throughout the

ALJ’s decision crediting doctors’ opinions that Hulme suffers from the disorder.

Nonetheless, Hulme’s medical treatments focused primarily on her substance abuse

rather than her PTSD, and as the ALJ noted, when she “was not regularly abusing

drugs, she was able to function and cope much better.” Indeed, doctors reported


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that Hulme’s PTSD was “fairly quiet” with only “mild symptoms” and that when

she gets “plugged into” treatment programs, she does “really well” and her sleep,

energy, and mood is better. Hulme did not meet her burden of proving that her

drug addiction is not a contributing factor material to her disability. See Parra,

481 F.3d at 744-45 (noting claimant has the burden of proof).

      Hulme contends she was prevented from submitting additional evidence to

support her “co-morbidity” theory. The record does not support that contention.

Although she asserts the ALJ refused to accept supplemental evidence, Hulme was

then represented by counsel who stated nothing more needed to be added. Hulme

next contends that her “lay representative” failed to offer evidence of co-morbid

conditions, but again, Hulme was represented by counsel. The record also does not

support Hulme’s allegations that her counsel were not really attorneys or that they

acted on her behalf even after she fired them. There is also no support for Hulme’s

contentions that the ALJ refused to permit lay testimony.

      Hulme did seek to add evidence to the record after the ALJ’s decision,

including extracts from the internet and medical articles discussing PTSD,

fibromyalgia, and the co-morbidity of substance abuse with other mental disorders.

These submissions do not, however, relate to Hulme’s personal or medical

circumstances. The Appeals Council may decline to review additional evidence


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that is not new and material. Russell v. Bowen, 856 F.2d 81, 84 (9th Cir. 1988)

(citing 20 C.F.R. § 404.970(b)). Similarly, the district court is not required to

remand unless the submitted evidence is material to determining the claimant’s

disability and there is good cause for the claimant’s failure to produce the evidence

earlier. Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001) (citing 42 U.S.C.

§ 405(g)).

      Finally, the Commissioner argues the district court erred by reinstating

Hulme’s prior award of disability benefits. The Commissioner did not, however,

cross-appeal the district court’s ruling, and thus our review is limited to those

issues raised by Hulme. See Benecke v. Barnhart, 379 F.3d 587, 590 (9th Cir.

2004) (limiting issues to claimant’s appeal when the Commissioner failed to cross-

appeal issues decided in claimant’s favor). Moreover, we note the district court

previously affirmed that award of benefits and remanded solely to determine

whether Hulme was entitled to continued benefits. Thus, the ALJ’s decision to

vacate the closed period award violated the court’s remand order.

      AFFIRMED.




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