Adriana Suero v. Michael Astrue , 372 F. App'x 808 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 31 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ADRIANA Q. SUERO, No. 08-56679
Plaintiff - Appellant, D.C. No. 2:06-cv-07596-PA-AGR
v.
MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
Social Security Administration,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted February 2, 2010**
Pasadena, California
Before: KLEINFELD, WARDLAW and CALLAHAN, Circuit Judges.
Adriana Suero appeals from the district court’s judgment, which affirmed
the ALJ’s finding that Suero was disabled as of November 28, 1999. 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).
The ALJ found that Suero’s impairments did not meet or equal any of the
impairments listed in Appendix 1 to Subpart P of Regulations No. 4. Suero argues
that her impairments meet Listings 1.02 and 1.04. Suero failed to meet her burden
of showing that she meets each characteristic of the listed impairment by
establishing “symptoms, signs and laboratory findings ‘at least equal in severity
and duration’ to the characteristics of a relevant listed impairment, or, if a
claimant's impairment is not listed, then to the listed impairment ‘most like’ the
claimant's impairment.” See Young v. Sullivan, 911 F.2d 180, 183-84 (9th Cir.
1990). Thus, there was substantial evidence in the record supporting the ALJ’s
conclusion that Suero’s impairments did not meet or equal any listed impairments.
We reject Suero’s argument that the record was not adequately developed.
However, there is no evidence of an ambiguity or gap in the file that would trigger
the ALJ’s duty to further develop the evidence. See Mayes v. Massanari, 276 F.3d
453, 459-60 (9th Cir. 2001). To the extent that the ALJ might have had such a
duty in this case, the ALJ discharged it by leaving the record open after the August
2003 hearing to allow Suero to submit additional evidence. Tonapetyan v. Halter,
242 F.3d 1144, 1150 (9th Cir. 2001).
The ALJ considered Suero’s subjective complaints, and found that objective
evidence established that Suero had underlying medically determinable
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impairments that could produce her symptoms. In his first opinion, the ALJ
indicated that he found Suero to be credible, but in his second opinion, the ALJ
rejected Suero’s testimony as only “partially credible.” There is substantial
evidence in the record to support the ALJ’s conclusion that Suero was only
partially credible, and the ALJ pointed to several clear and convincing reasons for
his change of opinion: the discrepancy between the medical evidence (describing
her fibromyalgia as mild, and noting improvement in her condition) and her claims
of extreme limitations (not being able to hold a coffee cup); her unwillingness to
undergo surgery and lack of aggressive treatment of these allegedly extreme
symptoms, and the apparent untruthfulness of Suero’s statement that she was only
treated by one physician until December 2001 (when she later submitted evidence
that she was treated by a Chilean physician beginning in 1999). We defer to the
ALJ’s evaluation of the evidence and determination of credibility.
There was substantial evidence in the record to support the ALJ’s
determination that Suero was not disabled prior to November 28, 1999. Suero did
not present any medical evidence or opinion supporting her testimony that she
suffered extreme limitations during the claimed period from March 1996 to
November 1999. The ALJ properly concluded based on the grids and the
vocational expert’s testimony that, given Suero’s residual capacity as supported by
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substantial evidence in the record, Suero could have performed other jobs in the
national economy and was not disabled during that period. See Bayliss v.
Barnhart, 427 F.3d 1211, 1217-18 (9th Cir. 2005).
AFFIRMED.
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