                                                                           FILED
                              NOT FOR PUBLICATION                           FEB 14 2013

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



ROBERT GUARDADO,                                  No. 11-57225

                Plaintiff - Appellant,            D.C. No. 2:10-cv-07972-OP

  v.
                                                  MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
Social Security,

                Defendant - Appellee.



                     Appeal from the United States District Court
                        for the Central District of California
                     Oswald Parada, Magistrate Judge, Presiding **

                            Submitted January 22, 2013 ***

Before:         HUG, FARRIS, and LEAVY, Circuit Judges.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
          ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Robert Guardado appeals the judgment of the district court affirming the

Commissioner’s final decision denying Guardado disability benefits under Title

XVI of the Social Security Act, 42 U.S.C. §§ 401-434, 1381-1383f. We have

jurisdiction under 28 U.S.C. § 1291. We review the district court’s decision de

novo. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). We affirm.

      The second step of the Social Security Administration’s five-step disability

evaluation screens out claimants who do not have a “severe impairment” or

“combination of impairments” that significantly limits the claimant’s “physical or

mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). A disability

must be present for at least twelve months continuously or be expected to result in

death. 42 U.S.C. § 423(d)(1)(A). The claimant bears the burden at step two.

Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).

      The administrative law judge (“ALJ”) determined that Guardado did not

establish a severe impairment or combination of impairments present for at least

twelve months. This conclusion is supported by substantial evidence. After back

surgery in 2005, Guardado’s work disability was listed as two months. Guardado’s

hypertension was described as appropriately controlled with medication. The

record does not indicate that Guardado has continuously severe back or heart

problems.


                                          2                                    11-57225
      Guardado argues that the ALJ erred in its analysis of the medical opinion

from Dr. Singh, who performed an examination at the request of the Social

Security Administration. The ALJ explicitly considered Dr. Singh’s opinion based

upon his diagnosis and functional assessment. Dr. Singh’s assessment is not

inconsistent with the ALJ’s finding that Guardado did not satisfy the twelve month

duration requirement.

      Guardado argues that the ALJ improperly rejected the opinion of the non-

examining state agency physician, Dr. Gilpeer. However, there is nothing in Dr.

Gilpeer’s physical residual capacity assessment that would support a determination

that Guardado has satisfied the twelve month duration requirement.

      Guardado argues that an individual of his age and education who is limited

to light work is presumptively disabled pursuant to the applicable medical-

vocational guidelines. This argument is unpersuasive because the guidelines are

applied at step five of the sequential evaluation process where a claimant has

already been found to have a severe impairment. See Lounsburry v. Barnhart, 468

F.3d 1111, 1114 (9th Cir. 2006).

      AFFIRMED.




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