FILED
NOT FOR PUBLICATION
SEP 06 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KHALID AHMAD HAMED, No. 16-55165
Plaintiff-Appellant, D.C. No. 8:14-cv-01639- KES
v.
NANCY A. BERRYHILL, Acting MEMORANDUM*
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Karen E. Scott, Magistrate Judge, Presiding
Submitted August 30, 2017**
Pasadena, California
Before: TASHIMA, FISHER, and BYBEE, Circuit Judges.
Appellant Khalid Ahmad Hamed applied for Social Security disability
insurance benefits and supplemental security income. He alleged a disability
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
stemming from a variety of ailments, including hepatitis B (which then led to
cirrhosis, an enlarged spleen, and a platelet deficiency), chronic swelling in his
right leg, and back and neck pain. An Administrative Law Judge (“ALJ”) found
that although Hamed’s conditions were severe, he could still perform certain kinds
of work. In reaching this conclusion, the ALJ discounted the opinion offered by
Dr. Samir Azzam, one of Hamed’s treating physicians, and relied instead on the
opinions of Drs. D. Chan and Irvine Belzer, neither of whom actually treated or
examined Hamed. The ALJ’s denial of Hamed’s application was affirmed by the
district court.
This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1291
and 42 U.S.C. § 405(g), and we affirm.
Hamed raises a single contention on appeal: that the ALJ erred by
discounting the opinion of Dr. Azzam, in favor of the opinions of non-treating,
non-examining physicians. “As a general rule, more weight should be given to the
opinion of a treating source than to the opinion of doctors who do not treat the
claimant.” Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1222 (9th Cir. 2010)
(citation omitted). This rule, however, is not absolute. As we have held, “[w]here
. . . a nontreating source’s opinion contradicts that of the treating physician but is
not based on independent clinical findings, or rests on clinical findings also
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considered by the treating physician, the opinion of the treating physician may be
rejected only if the ALJ gives specific, legitimate reasons for doing so that are
based on substantial evidence in the record.” Andrews v. Shalala, 53 F.3d 1035,
1041 (9th Cir. 1995) (emphasis added and citation omitted). See also Orn v.
Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (“If the ALJ wishes to disregard the
opinion of the treating physician, he or she must make findings setting forth
specific, legitimate reasons for doing so that are based on substantial evidence in
the record.” (emphasis added) (citation omitted)).
Here, the opinion of Dr. Azzam, the treating physician, was contradicted by
the opinions of Drs. Chan and Belzer, even though they all relied on the same
clinical findings. Thus, under Andrews and Orn, the dispositive question is
whether the ALJ gave “specific, legitimate reasons” for discounting Dr. Azzam’s
opinions.
The ALJ gave two such reasons. First, she determined that Dr. Azzam’s
opinion was unsupported by the record. This alone is sufficient. See Tommasetti
v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (explaining that an “incongruity”
between a treating physician’s questionnaire responses and a patient’s medical
records is a “specific and legitimate reason” for discounting the physician’s
opinions). Second, the ALJ discounted Dr. Azzam’s conclusions because he was
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too reliant on Hamed’s own discredited, subjective statements about his condition.
This is an independent ground for discounting Dr. Azzam’s opinions. See id. (“An
ALJ may reject a treating physician’s opinion if it is based ‘to a large extent’ on a
claimant’s self-reports that have been properly discounted as incredible.” (citation
omitted)); Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989) (holding that a
treating physician’s reliance on a patient’s own discredited subjective complaints is
a specific and legitimate reason for discounting the physician’s opinion).
Thus, the ALJ adequately explained her reasons for discounting Dr.
Azzam’s testimony.
The judgment of the district court is AFFIRMED.
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