Unpublished Disposition, 865 F.2d 264 (9th Cir. 1984)

MEMORANDUM^** 

Estella G. Gonzales filed an application for Social Security and SSI disability benefits in 1986 alleging an inability to work since April 9, 1984, due primarily to keratinized¹  and scarred tissues on her eyelids. Gonzales acknowledges that her condition is not presently disabling and argues that this court should award a closed period of disability for the two years when she was undergoing eye surgery.

An Administrative Law Judge (ALJ) considered Gonzales' complaints of pain and visual limitations but nevertheless found Gonzales was not disabled because her testimony was not "supported by appropriate medical findings or signs." The ALJ reached this conclusion because, although Gonzales had apparently undergone several surgeries on her eyelids, she only submitted four pages of medical records relating to one successful surgery in March 1986.

After receiving the findings and recommendations of a magistrate, the district court granted summary judgment for the Secretary. Like the ALJ, the district court discounted Gonzales' testimony because it lacked the support of objective medical evidence. The ALJ and the district court each stressed that a claimant has the burden of proving disability within the meaning of the Social Security Act, Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984), and held that Gonzales' failure to provide more of her medical records amounted to a failure to sustain her burden of proof.

The ALJ and the district court erred in determining that Gonzales' testimony was unsupported by objective medical evidence. It is undisputed that Gonzales underwent eight surgical operations on her eyelids. Her testimony that her vision was blurred was also supported by the medical center record of March 1986 that her eyelashes were rubbing on her corneas and by the report of an operation, involving all four of her eyelids, to recess a portion of the lids, to eliminate scar tissue and to graft mucous membrane on to the lids. The surgeon reported that earlier treatments had destroyed the fibous plate that gives form to the edges of the eyelids. Since there was medical evidence to support Gonzales' subjective testimony, the ALJ should not have rejected that testimony unless he provided specific findings justifying the rejection. Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986).

The ALJ did not satisfy his duty to make such a specific finding by simply noting that the claimant had not produced all relevant medical records. Although a disability claimant has the burden of establishing her disability, an administrative law judge "has a special duty to fully and fairly develop the record and to assure that the claimant's interests are considered," even when the claimant is represented by counsel. Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). There is no evidence here that the ALJ fulfilled this duty by requesting the missing records. While Gonzales' eye problems may ultimately have been alleviated by the final surgery, see Olde v. Heckler, 707 F.2d 438, 440 (9th Cir. 1983), in the interim period for which she seeks benefits she may well have been disabled. Her visual acuity, demonstrated by her performance on tests of vision, does not indicate that she did not suffer from blurring and double vision.

As to her orthopedic ailments, substantial evidence supported the Secretary's decision.

We remand for further proceedings consistent with this opinion.