Oganes Agadzhanyan v. Michael Astrue

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NOT FOR PUBLICATION DEC 10 2009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.

1
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).

2
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,

3
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.