Hana Kakos v. Michael Astrue

FILED
NOT FOR PUBLICATION DEC 27 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HANA HANNA KAKOS, No. 10-55173
Plaintiff-Appellant, D.C. No. 09-cv-0290 - H (CAB)
v.
MEMORANDUM *
MICHAEL J. ASTRUE,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Argued and Submitted November 7, 2011
Pasadena, California
Before: SCHROEDER and LEAVY, Circuit Judges, and GILLMOR, District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Helen W. Gillmor, United States District Judge for the
District of Hawaii, sitting by designation.
Plaintiff-Appellant Hana Hanna Kakos appeals the district court’s granting
of summary judgment in favor of the Social Security Administration
Commissioner.
We review de novo a district court’s summary judgment upholding an
administrative law judge’s (“ALJ”) denial of social security benefits. Berry v.
Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). The ALJ’s disability determination
will be affirmed unless it is based on legal error or it was not supported by
substantial evidence. Id.; 42 U.S.C. §§ 405(g), 1383(c)(3).
Kakos first argues that the ALJ erred by not fully developing the
administrative record. A claimant for social security benefits carries the burden of
proving she is disabled. 42 U.S.C. § 423(d)(5)(A); Valentine v. Comm’r Soc. Sec.
Admin., 574 F.3d 685, 689 (9th Cir. 2009). When the evidence in the record is
vague or ambiguous, the ALJ has a duty to develop the record to resolve the
ambiguity. McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011) (citing
Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001)). When the record
allows the ALJ to evaluate the evidence and make a disability determination based
on substantial evidence, the ALJ is under no obligation to further develop the
record. Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001). In the present
case, three physicians conducted independent personal evaluations of Kakos and
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four non-examining physicians reviewed Kakos’s medical records. All seven
physicians concluded that Kakos was not disabled. The record before the ALJ was
substantial and unambiguous. See Tonapetyan, 242 F.3d at 1149 (physician’s
independent examination may constitute substantial evidence); Lester v. Chater, 81
F.3d 821, 831 (9th Cir. 1995) (non-examining physician’s opinion may constitute
substantial evidence when opinion is consistent with independent evidence in
record). The ALJ was under no obligation to develop the administrative record
further. See Mayes, 276 F.3d at 459-61.
Kakos also argues that the ALJ posed an improper hypothetical question to
the vocation expert at the administrative hearing. When an ALJ uses a vocation
expert to determine which jobs the claimant is able to preform, hypothetical
questions “must ‘set out all the limitations and restrictions of the particular
claimant.’” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir.
2009) (quoting Russell v. Sullivan, 930 F.2d 1443, 1445 (9th Cir. 1991)). Here, the
ALJ’s hypothetical question to the vocation expert properly incorporated Kakos’s
physical and mental limitations.
The ALJ’s disability determination was based on substantial evidence and
did not contain legal error. The district court properly granted summary judgment
in favor of the Commissioner.
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AFFIRMED.
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