Oganes Agadzhanyan v. Michael Astrue , 357 F. App'x 148 ( 2009 )

FILED
NOT FOR PUBLICATION DEC 10 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
OGANES AGADZHANYAN, No. 08-56303
Plaintiff - Appellant, D.C. No. 08-1161-CT
v.
MEMORANDUM *
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Carolyn Turchin, Magistrate Judge, Presiding
Submitted December 8, 2009 **
Pasadena, California
Before: THOMPSON and SILVERMAN, Circuit Judges, and BOLTON,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
This panel unanimously finds this case suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Susan R. Bolton, United States District Judge for the
District of Arizona, sitting by designation.
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Oganes Agadzhanyan (“Appellant”) appeals from the district court’s order
affirming the Commissioner of Social Security’s denial of disability insurance benefits
under the Social Security Act, 42 U.S.C. §§ 401-33 (“the Act”). We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm.
This Court reviews the district court’s order de novo. Flaten v. Sec’y of Health
& Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). The appropriate standard of
review is whether the administrative law judge’s (“ALJ”) findings of fact are
supported by substantial evidence and whether the ALJ applied the correct legal
standards. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.
2004).
The magistrate judge properly concluded that the ALJ’s decision to deny
benefits was supported by substantial evidence. The magistrate judge also properly
concluded that the ALJ did not err in finding Appellant to be less than fully credible,
discounting the testimony of an examining physician, and deciding not to order further
psychological testing. The ALJ also did not err in propounding a hypothetical scenario
to a Vocational Expert (“VE”) and relying on the VE’s testimony. Finally, the
magistrate judge did not use post hoc reasoning in upholding the ALJ’s decision.***
***
Appellant waived his other arguments because he did not raise them before the district
court. See Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001); Marbled Murrelet v. Babbitt,
83 F.3d 1060, 1063 (9th Cir. 1996).
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The ALJ provided clear and convincing reasons for disbelieving Appellant’s
testimony, pointing to the numerous inconsistencies in his statements and testimony
and the dearth of objective medical evidence in the record, as well as his ability to
perform activities of daily living and lack of treatment history. See Lester v. Chater,
81 F.3d 821, 834 (9th Cir. 1996) (“Unless there is affirmative evidence showing the
claimant is malingering, the Commissioner’s reasons for rejecting the claimant’s
testimony must be ‘clear and convincing.’” (quoting Swenson v. Sullivan, 876 F.2d
683, 687 (9th Cir. 1989))).
The ALJ provided specific and legitimate reasons, supported by substantial
evidence, for discounting the opinion of examining psychologist Michael Malmon-
Berg. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (“If a treating or
examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may
only reject it by providing specific and legitimate reasons that are supported by
substantial evidence.” (citing Lester, 81 F.3d at 830-831)). The ALJ did not fully
credit Dr. Malmon-Berg’s opinion because it was based primarily on Appellant’s
subjective descriptions of his ailments and because it was not supported by any other
evidence in the record.
The ALJ did not err in not ordering further psychological testing or evaluation
for Appellant. The ALJ’s independent duty to develop the record was not triggered,
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because he did not find any piece of evidence to be ambiguous or difficult to interpret.
See Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (citing Smolen v.
Chater, 80 F.3d 1273, 1288 (9th Cir. 1996); Armstrong v. Comm’r of Soc. Sec.
Admin., 160 F.3d 587, 5990 (9th Cir. 1998)).
The hypothetical scenario proposed to the VE was complete, and the ALJ did
not err in relying upon that testimony in formulating a residual functional capacity
(“RFC”) for Appellant. The scenario the ALJ propounded was “accurate, detailed,
and supported by the medical record.” Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir.
1999). It was proper for the ALJ to limit the hypothetical to only those restrictions that
are supported by substantial evidence in the record. See Rollins v. Massanari, 261
F.3d 853, 857 (9th Cir. 2001); Magallanes v. Bowen, 881 F.2d 747, 756-57 (9th Cir.
1989).
The magistrate judge did not employ post hoc reasoning in upholding the
decision of the ALJ. The district court must consider “the record as a whole” in
determining whether substantial evidence supports the ALJ’s conclusions. See, e.g.,
Tackett, 180 F.3d at 1097. It was not improper for the magistrate judge to consider the
entire record in arriving at her conclusions.
AFFIRMED.
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