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Gurusco v. Colvin

United States District Court, W.D. Washington, Seattle

April 28, 2014

NAZIM GURUSCO, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

ORDER

JOHN C. COUGHENOUR, District Judge.

This matter comes before the Court on Plaintiffs objections to the Report and Recommendation of the Honorable James P. Donohue, United States Magistrate Judge. (Dkt. No. 20.) Having thoroughly considered Report and Recommendation, (Dkt. No. 19), the objections, Defendants response, (Dkt. No. 21), Plaintiffs reply, (Dkt. No. 22), the administrative record, (Dkt. No. 13), and the balance of the record, the Court finds oral argument unnecessary and hereby overrules Plaintiffs objections and adopts the Report and Recommendation for the reasons explained herein.

I. BACKGROUND

The relevant facts in this case have been set forth in Judge Donohues Report and Recommendation, and the Court will not repeat them. (Dkt. No. 19 at 1-2, 5-6.) In brief, Plaintiff, a below-the-knee amputee with a prosthetic device, contends that his impairment meets or equals the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ disagreed, and Plaintiff appealed its ruling to this Court.

Judge Donohue recommends upholding the ALJs finding that Plaintiffs impairment does not meet or equal the impairment set out in Listing 1.05 of 20 C.F.R. Part 404, Subpart P, Appendix 1. In particular, Judge Donohue recommends finding that the Listings reference to a "medical inability to use a prosthetic device to ambulate effectively" required the existence of a medical condition that prevents Plaintiff from using a prosthesis to ambulate, rather than an inability to afford such a prosthesis. (Dkt. No. 19 at 15-16.)

II. DISCUSSION

As both Judge Donohue and Plaintiff agree, it is a claimants burden to demonstrate that his or her impairments meet or equal a listing. See Bowen v. Yuckert, 482 U.S. 137, 141, 146 n.5 (1987). The Commissioners findings of facts are conclusive "if supported by substantial evidence." 42 U.S.C. § 405(g). Here, Plaintiff argues that the ALJ-and, subsequently, Judge Donohue-erred because Plaintiffs impairment meets or equals an impairment set out in the relevant federal regulation.

A. Medical Inability to Use a Prosthetic Device to Ambulate Effectively

Listing 1.05B states that an individual is disabled if he has an amputation consisting of "[o]ne or both lower extremities at or above the tarsal region, with stump complications resulting in medical inability to use a prosthetic device to ambulate effectively, as defined in 1.00B2b, which have lasted or are expected to last for at least 12 months." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.05B. Plaintiffs left foot has been amputated. At issue is whether Plaintiffs stump complications result in a medical inability to use a prosthetic device to ambulate effectively due to conditions unrelated to the use of his current, ill-fitting, prosthesis.

Judge Donohue found that the ALJ did not err in finding that Plaintiff does not have stump complications resulting in a medical inability to use a prosthetic device to ambulate effectively that arose out of a cause independent from his ill-fitting prosthetic device. He noted that, first, the Ninth Circuits holding that the "inability to use a prosthesis effectively" in then-ORDER operative Listing 1.10(C) referred to financial inability as well as medical inability, Gamble v. Chater, 68 F.3d 319, 322 (9th Cir. 1995), had been overridden by the replacement of previous Listing 1.10(C) with currently-operative Listing 1.05(B), which specifically requires the " medical inability to use a prosthetic device to ambulate effectively." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.05B (emphasis added). Judge Donohue noted that the Commissioner, in discussing Listing 1.05(B), explicitly stated that "the inability to afford a prosthetic device does not represent a medical' inability to use a prosthetic device to ambulate effectively." (Dkt. No. 19 at 9) (quoting AR at 16-17.) See also Rescission of Social Security Acquiescence Ruling 97-2(9), 66 Fed. Reg. 58047 (Nov. 19, 2001) (same). Accordingly, Judge Donohue did not err in upholding the ALJs finding that Gamble v. Chater s interpretation of the phrase "inability to use a prosthesis effectively" in former Listing 1.10(C) is not directly applicable to the phrase "medical inability to use a prosthetic device to ambulate effectively" in current Listing 1.05(B). (Dkt. No. 19 at 15-16.)

Plaintiffs argument that "[t]here is no medical evidence in the record that supports a finding that Mr. Gurusco would be able to ambulate effectively if he had a better prosthesis, " (Dkt. No. 20 at 5), is incorrect, as there was medical evidence supporting precisely that claim. For instance, the ALJ was entitled to consider Plaintiffs medical history suggesting that his current problems did not exist at a time when he used a well-fitted prosthesis. ( See AR at 18.)[1] Moreover, Karen Johnson, ARNP, found "signs of an ill-fitting prosthesis as shown by bruising in left stump, open bleeding on end of stump, broken down prosthesis, " and a "foul smell, " suggesting that Plaintiffs current inability to ambulate effectively arises out of his ill-fitting prosthesis. (Dkt. No. 19 at 14) (citing AR at 425-26). ( See also Dkt. No. 19 at 14) (citing AR at 365, 368). Accordingly, as discussed by Judge Donohue, (Dkt. No. 19 at 13-15), the ALJ could reasonably rely upon the medical evidence before it to "conclude that to the extent any stump complications were mentioned in the medical records... these complications were caused by plaintiffs ill-fitting prosthesis rather than some other independent medical' cause." (Dkt. No. 19 at 15.)

Plaintiff also raises a closely related argument: that the ALJ should not have denied a finding of disability because "[d]isability benefits may not be denied because of the claimants failure to obtain treatment he cannot obtain for lack of funds." Gamble, 68 F.3d at 321. Effectively, Plaintiff is arguing that even if his impairment does not satisfy Listing 1.05(b)s requirement that he have a "medical" inability to use a prosthesis to ambulate effectively, the Court should nonetheless find that Plaintiffs impairment is equivalent to the one described in the Listing because Plaintiff cannot afford the treatment he requires. Even if Plaintiffs legal argument is correct, however, the ALJ is responsible for determining credibility, Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995), and as stated by the ALJ and acknowledged by Judge Donohue,

there is no evidence corroborating the claimants allegation that he is unable to obtain a better prosthesis. When I asked him about this his response was halfhearted and mumbled and he clearly had no real answer. He specifically acknowledged that he had made no contact with the source of his current prosthetic since a few years ago' when he went to them and all they did was provide a rubber piece.

(Dkt. No. 19 at 11) (quoting AR at 18). Indeed, that finding is corroborated by administrative records showing that Plaintiff stated that he had contacted only one charitable organization that provides prosthetics, "a few years back." (Dkt. 19 at 15) (quoting AR at 48.) Here, the above statements and demeanor, when combined with the other evidence on the record, supports the ALJs finding that "there is no evidence corroborating the claimants allegation that he is unable to obtain a better prosthesis." (AR at 18.) Plaintiff makes no effort to address the ALJs credibility finding, and does not contend that the ALJ erred in not crediting his statement that he cannot afford a prosthesis. Instead, Plaintiff conclusorily asserts that "he simply cannot afford to purchase a new prosthesis." (Dkt. No. 20 at 6.) However, the ALJ did not credit that explanation, and credibility determinations are among the ALJs responsibilities. Accordingly, the ALJs decision not "to apply the precepts of Gamble v. Chater to this case, " (AR at 19) (emphasis in original), is supported by its finding that claimant was not credible in stating that he could not afford a new prosthesis. ( See AR at 18-19, 21.)

For the foregoing reasons, the Court adopts Judge Donohues Report and Recommendation in full, and finds that the ALJs factual findings were based on substantial evidence and it did not err in its legal conclusions.

B. Alternative Arguments

In his objections to Judge Donohues Report and Recommendation, Plaintiff raises several new arguments for the first time. First, Plaintiff states that the ALJ, upon determining that Plaintiffs inability to ambulate effectively arose out of his ill-fitting prosthesis, "had the duty to secure a medical opinion regarding the effect of a new prosthesis on Mr. Guruscos ambulation once this became the crux of the inquiry and decision." (Dkt. No. 20 at 5.) Second, Plaintiff attempts to challenge the ALJs finding regarding Plaintiffs residual functional capacity. (Dkt. No. 20 at 7-8.) Plaintiff does not contend that he previously raised these grounds in his original brief, or give any reason why the Court should consider them now despite his failure to raise them. ( See Dkt. No. 20 at 5-8, Dkt. No. 22 at 3-6.)

The Court will not consider arguments that are raised for the first time in a partys objections to a magistrate judges report and recommendation. See In re Rains, 428 F.3d 893, 902 (9th Cir. 2005) ("In general, this Court does not consider an issue raised for the first time on appeal."); Indep. Towers of Wash. v. Wash., 350 F.3d 925, 929 (9th Cir. 2003) ("[W]e will not consider any claims that were not actually argued in appellants opening brief."). Accordingly, the Court declines to address those arguments.

III. CONCLUSION

For the foregoing reasons, Plaintiffs objections to Judge Donohues Report and Recommendation, (Dkt. No. 20) are OVERRULED. The Court ADOPTS Judge Donohues Report and Recommendation in full. The final decision of the Commissioner is AFFIRMED and this case is DISMISSED with prejudice. The Clerk of the Court is directed to send copies of this Order to the parties and to Judge Donohue.


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