                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              MAR 31 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

ADRIANA Q. SUERO,                                No. 08-56679

             Plaintiff - Appellant,              D.C. No. 2:06-cv-07596-PA-AGR

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

             Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                    Percy Anderson, District Judge, Presiding

                           Submitted February 2, 2010**
                              Pasadena, California

Before: KLEINFELD, WARDLAW and CALLAHAN, Circuit Judges.

       Adriana Suero appeals from the district court’s judgment, which affirmed

the ALJ’s finding that Suero was disabled as of November 28, 1999. We affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      The ALJ found that Suero’s impairments did not meet or equal any of the

impairments listed in Appendix 1 to Subpart P of Regulations No. 4. Suero argues

that her impairments meet Listings 1.02 and 1.04. Suero failed to meet her burden

of showing that she meets each characteristic of the listed impairment by

establishing “symptoms, signs and laboratory findings ‘at least equal in severity

and duration’ to the characteristics of a relevant listed impairment, or, if a

claimant's impairment is not listed, then to the listed impairment ‘most like’ the

claimant's impairment.” See Young v. Sullivan, 911 F.2d 180, 183-84 (9th Cir.

1990). Thus, there was substantial evidence in the record supporting the ALJ’s

conclusion that Suero’s impairments did not meet or equal any listed impairments.

      We reject Suero’s argument that the record was not adequately developed.

However, there is no evidence of an ambiguity or gap in the file that would trigger

the ALJ’s duty to further develop the evidence. See Mayes v. Massanari, 276 F.3d

453, 459-60 (9th Cir. 2001). To the extent that the ALJ might have had such a

duty in this case, the ALJ discharged it by leaving the record open after the August

2003 hearing to allow Suero to submit additional evidence. Tonapetyan v. Halter,

242 F.3d 1144, 1150 (9th Cir. 2001).

      The ALJ considered Suero’s subjective complaints, and found that objective

evidence established that Suero had underlying medically determinable


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impairments that could produce her symptoms. In his first opinion, the ALJ

indicated that he found Suero to be credible, but in his second opinion, the ALJ

rejected Suero’s testimony as only “partially credible.” There is substantial

evidence in the record to support the ALJ’s conclusion that Suero was only

partially credible, and the ALJ pointed to several clear and convincing reasons for

his change of opinion: the discrepancy between the medical evidence (describing

her fibromyalgia as mild, and noting improvement in her condition) and her claims

of extreme limitations (not being able to hold a coffee cup); her unwillingness to

undergo surgery and lack of aggressive treatment of these allegedly extreme

symptoms, and the apparent untruthfulness of Suero’s statement that she was only

treated by one physician until December 2001 (when she later submitted evidence

that she was treated by a Chilean physician beginning in 1999). We defer to the

ALJ’s evaluation of the evidence and determination of credibility.

      There was substantial evidence in the record to support the ALJ’s

determination that Suero was not disabled prior to November 28, 1999. Suero did

not present any medical evidence or opinion supporting her testimony that she

suffered extreme limitations during the claimed period from March 1996 to

November 1999. The ALJ properly concluded based on the grids and the

vocational expert’s testimony that, given Suero’s residual capacity as supported by


                                          3
substantial evidence in the record, Suero could have performed other jobs in the

national economy and was not disabled during that period. See Bayliss v.

Barnhart, 427 F.3d 1211, 1217-18 (9th Cir. 2005).



      AFFIRMED.




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