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Burhus v. Astrue

January 21, 2010

DALLAS D. BURHUS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

(Social Security Case)

This matter is before the Court for review of the decision by the Commissioner of Social Security denying Plaintiff's application for disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have consented that the case may be handled by the Magistrate Judge. The action arises under 42 U.S.C. §405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner. The parties have filed the Joint Stipulation ("JS"), and the Commissioner has filed the certified Administrative Record ("AR").

Plaintiff raises the following issues:

1. Whether the Administrative Law Judge ("ALJ") properly developed the record;

2. Whether the ALJ properly considered the lay witness testimony; and

3. Whether the ALJ considered Plaintiff's testimony and made proper credibility findings.

(JS at 2.)

This Memorandum Opinion will constitute the Court's findings of fact and conclusions of law. After reviewing the matter, the Court concludes that the decision of the Commissioner must be affirmed.

I. THE ALJ DID NOT FAIL TO PROPERLY DEVELOP THE RECORD

On May 12, 2008, Plaintiff had a consultative psychological evaluation ("CE") from Dr. Sherrill. (AR 426-432.) Plaintiff arrived for his appointment in an apparently intoxicated condition, accompanied by his cousin. Plaintiff's cousin indicated that Plaintiff had suffered an accident resulting in a six-month hospital stay. (AR 428.) Dr. Sherrill noted that there were no records indicating a six-month hospital stay because of an accident. (AR 431.) Plaintiff, on that basis, argues that the ALJ had an obligation to develop the record.

First, the Court notes that the absence of records of any accident, if such records exist, did not impair Dr. Sherrill's ability to render a diagnostic impression and a functional assessment. (AR 431-432.) In any event, the Commissioner correctly notes that Plaintiff and his counsel were given numerous and ample opportunities to provide relevant evidence to support the claim of a disabling impairment. These opportunities are summarized in the Commissioner's portion of the JS, and include the fact that Plaintiff never mentioned any such treatment for an accident in any of the administrative records (AR 112-113, 131, 137-138); that Plaintiff was advised to obtain and submit to the ALJ updated medical evidence prior to the hearing (AR 72); that a compact disk containing all the evidence was sent to Plaintiff prior to the hearing, on January 10, 2008 (AR 79); that Plaintiff got another notice from the agency on January 24, 2008 reminding him that he could submit additional medical evidence before the hearing (AR 23); that, at the hearing, the ALJ asked Plaintiff if he had reviewed the record and whether he had any objection to it (AR 31-32), and Plaintiff did not object (AR 32); that the ALJ asked Plaintiff if there were any other documents or if the record was complete, and Plaintiff's attorney indicated that it was complete (AR 32); and finally, that Plaintiff had an opportunity to submit additional evidence to the Appeals Council, but failed to do so (AR 4, 9). Indeed, Plaintiff has the burden of producing such evidence. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005).

Further, Plaintiff was sent out for both a psychological CE and a physical CE. Following those examinations, functional capacity assessments were made based upon the clinical examinations. Plaintiff has not explained how, if any additional historic records of treatment existed, they would have impacted the actual assessments made during these examinations.

In sum, there is no ambiguous or incomplete evidence which has been demonstrated to exist in this record which would have any impact upon the disability assessment. Only in such situations is there an obligation to develop the record. See Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. ...


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