NEIL V. WAKE, District Judge.
Edward J. Gurule seeks review under 42 U.S.C. §§ 405(g), 1383(c)(3), of the final decision of the Commissioner of Social Security ("the Commissioner"), which denied him disability insurance benefits and supplemental security income under the Social Security Act. Because the decision of the Administrative Law Judge ("ALJ") is supported by substantial evidence and is not based on legal error, the Commissioner's decision will be affirmed. Plaintiff's request for oral argument will be denied because the written briefing is sufficient and oral argument would not aid determination of the appeal. See Fed. R. Civ. P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998).
Gurule was born on November 17, 1967. When he was 12 years old, Gurule sustained a gun shot wound to his right ankle. In March 2007, he sought treatment for pain and swelling in his right leg and continues to have chronic pain in his right leg and ankle. In addition, he is morbidly obese and has lower back pain, diabetes mellitus, hypertension, and high cholesterol.
Gurule did not complete high school, but has a GED. He previously worked as a school cafeteria assistant and security guard, fast food restaurant assistant manager, and general laborer.
On April 16, 2007, Gurule protectively applied for disability insurance benefits, and on April 24, 2007, he protectively applied for supplemental security income. In both applications he alleges disability beginning January 1, 2007. The applications were denied on initial review and again on reconsideration, after which Gurule requested that his claim be heard by an ALJ. On October 6, 2009, an administrative hearing was held at which Gurule testified, but was not represented by counsel.
On March 18, 2011, the Appeals Council denied Gurule's request for review of the ALJ's unfavorable decision, making that decision the final decision of the Commissioner. On May 17, 2011, Gurule sought judicial review of the decision pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3).
The district court reviews only those issues raised by the party challenging the ALJ's decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court may set aside the Commissioner's disability determination only if the determination is not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9
The ALJ is responsible for resolving conflicts in medical testimony, determining credibility, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9
To determine whether a claimant is disabled for purposes of the Social Security Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). If the ALJ determines that the claimant is disabled or not disabled at any step, the ALJ does not continue to the next step. The claimant bears the burden of proof on the first four steps, but at step five, the burden shifts to the Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
At the first step, the ALJ determines whether the claimant is engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(I). If so, the claimant is not disabled and the inquiry ends. Id. At the step two, the ALJ determines whether the claimant has a "severe" medically determinable physical or mental impairment. § 404.1520(a)(4)(ii). If not, the claimant is not disabled and the inquiry ends. Id. At step three, the ALJ considers whether the claimant's impairment or combination of impairments meets or equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. Id. If not, the ALJ proceeds to step four. At step four, the ALJ assesses the claimant's residual functional capacity and determines whether the claimant is still capable of performing past relevant work. § 404.1520(a)(4)(iv). If so, the claimant is not disabled and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step, where he determines whether the claimant can perform any other work based on the claimant's residual functional capacity, age, education, and work experience. § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is disabled. Id.
At step one, the ALJ found that Gurule has not engaged in substantial gainful activity since January 1, 2007, the alleged onset date of disability. At step two, the ALJ found that Gurule had the following impairments that are severe when they are considered in combination: "he is status-post a gunshot wound (GSW) to the right ankle with foot and ankle pain; and he has lower back pain; morbid obesity; diabetes mellitus; hypertension; and high cholesterol." At step three, the ALJ found that Gurule did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
The ALJ determined that Gurule:
At step four, the ALJ determined that Gurule is unable to perform any of his past relevant work. At step five, the ALJ concluded that, considering Gurule's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that Gurule could perform.
In evaluating the credibility of a claimant's testimony regarding subjective pain or other symptoms, the ALJ is required to engage in a two-step analysis: (1) determine whether the claimant presented objective medical evidence of an impairment that could reasonably be expected to produce some degree of the pain or other symptoms alleged; and, if so with no evidence of malingering, (2) reject the claimant's testimony about the severity of the symptoms only by giving specific, clear, and convincing reasons for the rejection. See Vasquez v. Astrue, 572 F.3d 586, 591 (9
To be found credible regarding subjective pain or fatigue, a claimant is not required to: (1) produce objective medical evidence of the pain or fatigue itself, or the severity thereof; (2) produce objective medical evidence of the causal relationship between the medically determinable impairment and the symptom; or (3) show that his impairment could reasonably be expected to cause the severity of the alleged symptom, only that it could reasonably have caused some degree of the symptom. Smolen v. Chater, 80 F.3d 1273, 1282 (9
Gurule contends that the ALJ erred by failing to set forth specific, clear, and convincing reasons to reject Gurule's testimony about the severity of his subjective symptoms. When Gurule applied for Social Security benefits, he said that he was unable to work because he had constant pain and swelling in his right leg and could not walk. He reported that he had very bad pain in both feet and legs so that he could not get out of bed and could not walk for weeks at a time. He also reported that doctors had no explanation for his pain except for his weight. He reported that he lives with his parents and does not prepare meals, do any household chores, does not drive, and does not shop. He said that his drivers license had been taken away because of his poor eyesight caused by diabetes. Further, he reported that he is not able to pay bills, count change, handle a savings account, or use a checkbook or money orders because of his poor eyesight and poor math skills. He also reported that he does not follow written instructions well, has difficulty following spoken instructions, does not get along with authority figures, and does not handle stress well. He reported that fourteen years before his application for benefits he was prescribed a cane, brace/splint, wheel chair, and crutches, which he uses almost all of the time. He also reported that three years before application he was prescribed eye glasses.
At the administrative hearing, Gurule testified that the longest he can stand at one time is four or five minutes and the longest he can sit is 20-30 minutes. After that, he needs to lie down. He said that he stopped working because of pain in his ankle, legs, and back. He also testified that his drivers license was suspended for driving without his glasses. He said he has pain in his right foot, ankle, and leg due to bullet fragments from a hunting accident and rheumatoid arthritis. He testified that he has low back pain, numbness in his right hand, and beginning glaucoma. He said that his vision problems began two or three years before, he had glasses that were in his car when it was stolen, and he has not replaced the glasses because he prefers not to drive and his uncontrolled diabetes makes it difficult to prescribe glasses for effective vision correction. He said that the back pain is caused by rheumatoid arthritis.
The ALJ made numerous, specific findings related to Gurule's credibility:
Thus, the ALJ did not reject Gurule's subjective symptom testimony entirely, and he provided specific, clear, and convincing reasons for partially rejecting Gurule's testimony about the severity of his symptoms.
Gurule contends that the ALJ should have granted benefits at step three of the sequential evaluation process because his vision impairment establishes disability pursuant to Listing 2.00. Listing 2.00 explains how visual disorders, including statutory blindness, are evaluated and what evidence is needed to establish statutory blindness and other visual disorders. 20 C.F.R. pt. 404, subpt. P, app. 1 listing 2.00. The Social Security Act defines blindness as visual acuity of 20/200 or less in the better eye with the use of a correcting lens. To establish a vision impairment under Listing 2.00, Gurule was required to submit evidence that his vision in his better eye after best correction was 20/200 or less.
On July 5, 2007, consultative examiner Ehreema Nadir, M.D., tested Gurule's vision using a Snellen chart. Dr. Nadir reported Gurule's vision as 20/200 in each eye with corrective lenses. Although Dr. Nadir's report indicates that Gurule's vision was tested with corrective lenses, it does not indicate that it was tested using best correction.
On October 9, 2007, state agency ophthalmologist Warren H. Heller, M.D., evaluated Gurule's eyes and vision. Dr. Heller reported Gurule's vision as 20/400 in each eye without glasses. He further reported that Gurule did not have glasses, but with correction his vision was 20/50 and 20/70. His eyes were normal without evidence of glaucoma or retinal disorder.
On July 9, 2008, consultative examiner Keith Cunningham, M.D., found no visual limitation and noted that Gurule reported having gained weight "sitting around home, watching TV." No doctor noted observing that Gurule had functional limitations because of impaired vision. In fact, Dr. Nadir opined that Gurule should "be able to sit at a desk job and do work." At the administrative hearing, Gurule testified that he could get his suspended drivers license back if he paid the fine for driving without glasses. He also testified that he can read newspapers and magazines using his "good eye."
Thus, the only evidence of Gurule's optimal visual acuity attainable with the use of a corrective lens is 20/50 and 20/70. After considering the evidence, the ALJ stated that he had carefully considered all sections of the Listing of Impairments in concluding that Gurule did not have an impairment or combination of impairments that meets or medically equals a Listing. He did not err by not granting Gurule benefits at step three of the sequential evaluation process based on Listing 2.00.
Gurule contends that the ALJ failed to perform his duty to develop the record and/or advise Gurule that the record was not developed and that the ALJ was required to be especially diligent because of Gurule's lack of representation at the administrative hearing. See McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011). When a claimant appears at an administrative hearing without counsel, the ALJ must probe and inquire for all the relevant facts, but lack of counsel does not affect the validity of the hearing unless the claimant demonstrates prejudice or unfairness in the administrative proceedings. Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985).
The ALJ asked Gurule whether he wanted to proceed without a representative, and Gurule responded, "At this point, yes." But then Gurule asked if he could get an extension if he needed to get a lawyer. The ALJ said, "If you tell me that you want to get a lawyer, then we'll have to postpone the hearing and reschedule it. So you tell me what you want to do." Gurule said, "I think I do want to get a lawyer." The ALJ questioned him regarding why he did not already have a lawyer, and Gurule said that he had been trying to get one for the past month. The ALJ asked why he had not attempted to get one when he requested the hearing more than a year before. Gurule said that he had new injuries and he had been "trying to get the doctors and all that to get on the same page so I can get help from a lawyer." Then, the following discussion took place:
Thus, Gurule was given opportunity to postpone the administrative hearing to obtain counsel, but chose to proceed without representation. Gurule does not contend that he was prejudiced by the lack of counsel or that the administrative hearing was unfair.
Gurule contends that the ALJ should have further developed the record by obtaining current treatment records, ordering a consultative vision examination, contacting treating physicians regarding their opinion of Gurule's residual functional capacity, and eliciting third-party reports. The ALJ's duty to conduct further inquiry is triggered by ambiguous evidence or the ALJ's finding that the record is inadequate to permit proper evaluation of the evidence. McLeod, 640 F.3d at 885.
Here, the evidence is not ambiguous, and the record is adequate to permit proper evaluation of the evidence. Gurule's corrected vision in the better eye is 20/50. He was not diagnosed during the relevant period with diabetic retinopathy. The only medical record indicating possible diabetic neuropathy stated that he had some decreased sensation in his feet even though he reported both "constant pain" and "constant numbness" in the soles of his feet. He has not consistently sought treatment or medication for his leg and back pain. Although he frequently refers to himself as having rheumatoid arthritis, he has not been diagnosed with that condition.
Further, Gurule does not identify any current treatment records that would have assisted the ALJ in assessing his residual functional capacity from January 1, 2007, to October 6, 2009. Instead, he has attached to his opening brief two medical reports from October 5, 2010, and September 26, 2011, long after the administrative hearing on October 6, 2009. The October 5, 2010 report states that Gurule's vision was 20/200 in both eyes without corrective lenses. The September 26, 2011 report states that Gurule reported a two-year history of bilateral lower-leg numbness, tingling, pain, and weakness. Neither report helps Gurule's case. Moreover, the record before the ALJ did include a consultative vision examination. Therefore, the ALJ did not fail to perform his duty to develop the record.
Gurule further contends that the ALJ erred by failing to ask the vocational expert whether his opinion was consistent with the Dictionary of Occupational Titles ("DOT"). Social Security Ruling 00-4p states:
Here, there was no apparent unresolved conflict between the vocational expert's evidence and the DOT, but the ALJ failed to inquire on the record whether there was a conflict. In his hearing decision, the ALJ stated that the vocational expert's testimony is consistent with the information contained in the DOT, but did not explain the basis for his finding. In his opening brief, Gurule did not contend that there is, in fact, an unresolved conflict between the vocational expert's evidence and the DOT, only that the ALJ committed a procedural error. In his reply brief, Gurule states that a sit/stand option conflicts with the DOT and requires vocational testimony. However, the ALJ specifically elicited vocational testimony regarding how much the sit/stand option reduced the numbers of the representative jobs that Gurule could perform, i.e., cashiering, assembly, and security positions. Thus, the ALJ erred by failing to inquire on the record whether there was a conflict, and if so, what was the basis for the vocational expert's opinion, but the error is harmless and remand is not warranted.
Gurule contends the ALJ erred by failing to provide an individualized residual functional capacity assessment as required by Social Security Ruling 96-8p. A claimant's residual functional capacity is "what an individual can still do despite his or her limitations." Social Security Ruling 96-8p. The residual functional capacity determination is "a function-by-function assessment based upon all of the relevant evidence of an individual's ability to do work-related activities." Id.
The hearing decision states:
This residual functional capacity assessment incorporates the specific functional limitations of the definition of "light work" with additional specific functional limitations.
Gurule's primary complaint is that the ALJ did not make an individualized determination because he used a "blanket routine hypothetical" that does not address Gurule's entire medical record and did not consider all of his impairments in combination. However, he does not contend that the residual functional capacity assessment needed to include limitations for diabetes, hypertension, or high cholesterol, and the record does not show any basis for limitations based on his need for corrective lenses. Considering these conditions in combination with his low back pain, foot and leg pain, and obesity does not result in a different residual functional capacity assessment. Gurule's residual functional capacity assessment provides limitations required by his low back pain, foot and leg pain, and obesity, and there is no evidence that Gurule's obesity in combination with his other impairments would cause him to be too fatigued to work full-time.
IT IS THEREFORE ORDERED affirming the final decision of the Commissioner of Social Security denying Gurule disability benefits.
IT IS FURTHER ORDERED that the Clerk enter judgment in favor of Defendant against Plaintiff and that Plaintiff take nothing. The Clerk shall terminate this action.
