NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 31 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SONA BAGOYAN SULAKHYAN, No. 09-56984
Plaintiff - Appellant, D.C. No. 2:09-cv-02136-DOC-CT
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
David O. Carter, District Judge, Presiding
Submitted October 14, 2011**
Pasadena, California
Before: NELSON and CALLAHAN, Circuit Judges, and ERICKSON, Chief
District Judge.***
Sona Bagoyan Sulakhyan (“Bagoyan”) appeals from the district court’s
*
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 Honorable Ralph R. Erickson, Chief District Judge for the U.S.
District Court for North Dakota, Fargo, sitting by designation.
judgment affirming the final decision by the Commissioner of Social Security
denying her claim for disability benefits. The Administrative Law Judge (“ALJ”)
found that Bagoyan was not credible, there were clear signs of exaggeration and
malingering, and her claims of severe medical disability were not corroborated by
expert analysis. Bagoyan appeals, arguing that the district court erred in affirming
the Commissioner’s decision. We affirm.1
Three issues are before us on appeal: (1) the ALJ erred in not explaining the
weight she gave to a surveillance video taken of Bagoyan as part of Bagoyan’s
worker’s compensation case; (2) the ALJ erred in not finding Bagoyan’s lumbar
disc bulges were a severe impairment; and (3) the ALJ erred in finding Bagoyan
not credible. Bagoyan also raised two additional issues which were not raised in
the district court, and are therefore not reviewable on appeal. Greger v. Barnhart,
464 F.3d 968, 973 (9th Cir. 2006).
We review the district court’s judgment de novo to determine whether the
Commissioner supported his decision with substantial evidence and applied the
correct legal standards. Batson v. Comm’r of Social Sec. Admin., 359 F.3d 1190,
1193 (9th Cir. 2004). The scope of appellate review, however, is limited and “[a]
decision to deny benefits will only be disturbed if it is not supported by ‘substantial
1
Because the parties are familiar with the facts and procedural history,
we do not restate them here except as necessary to explain our decision.
2
evidence or it is based on legal error.’” Burch v. Barnhart, 400 F.3d 676, 679 (9th
Cir. 2005) (quoting Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)).
Bagoyan first argues that the ALJ erred by not explaining what weight she
gave to the surveillance video of Bagoyan that was entered into evidence. Two of
Bagoyan’s treating doctors opined on the significance of the activities captured on
the video. Dr. Tauber testified that the video did not change his opinion that
Bagoyan was unable to perform heavy work, while Dr. Newton asserted that the
video showed Bagoyan was capable of work that required heavy lifting. We note
that both doctors were treating physicians in this case, and thus their opinions are
entitled to heightened deference. See Winans v. Bowen, 853 F.2d 643, 647 (9th
Cir. 1987). Given their divergent opinions, however, one analysis had to be
accepted over the other. The Commissioner is entitled to resolve disputes in
contradicted medical evidence, including rejecting the opinion of a treating
physician so long as the credibility finding is supported by substantial evidence in
the record. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).
Bagoyan did not dispute that the video was authentic, but contended the
items she was depicted lifting were of minimal weight, and she was still in pain,
nonetheless. The ALJ described the video as “crucial evidence” and
characterized Bagoyan’s actions on the video as “strenuous physical activities.”
3
On the basis of these findings, it is apparent that the ALJ gave more weight to Dr.
Newton’s opinions than she did to Dr. Tauber’s opinions or Bagoyan’s
characterizations. She explained that Dr. Newton’s opinions were “more
convincing and supported” by the activities in the video. The ALJ gave sufficient,
legitimate reasons for crediting some opinions and rejecting others, and because
these reasons were clearly stated, convincing, and supported by substantial
evidence in the record, there was no error.
Bagoyan next contends that her lumbar disc bulges constitute a “severe”
impairment. Bagoyan has not pointed to any source indicating her spinal condition
qualifies as a listed impairment. There is scant evidence that the bulging discs
exacerbated another impairment, and it is likely that the disc disease and
Bagoyan’s degenerative arthritis are related conditions.
While Dr. Miller opined that the disc bulges constituted a separate
impairment, the ALJ properly discounted this testimony of Bagoyan’s non-treating
physician. The ALJ found Dr. Miller’s reports contained an advocate’s tone rather
than that of a treating physician. Additionally, she found the reports lacked a
specific assessment and were conclusory in nature. The ALJ’s decision provides
specific, legitimate, and convincing reasons for discrediting Dr. Miller’s opinions,
and the ALJ did not err in refusing to denote Bagoyan’s bulging lumbar discs as a
4
separate severe impairment.
Finally, Bagoyan alleges that the ALJ erred in finding Bagoyan was not
credible. If the ALJ’s credibility finding is supported by substantial evidence in
the record, the court may not engage in second-guessing. Morgan v. Comm’r of
Soc. Sec. Admin, 169 F.3d 595, 600 (9th Cir. 1999). An ALJ’s credibility findings
are entitled to deference if sufficiently specific and supported by substantial
evidence. Bunnell v. Sullivan, 947 F.2d 341, 645-46 (9th Cir. 1991).
When there is affirmative evidence of malingering, which is present in this
case, the ALJ is relieved of the burden of providing specific, clear, and convincing
reasons to discount claimant’s testimony. See Carmickle v. Comm’r, Soc. Sec.
Admin., 533 F.3d 1155, 1160 (9th Cir. 2008). Even so, the ALJ provided clear and
convincing reasons for not crediting Bagoyan’s testimony concerning the severity
of her pain. Not only did the objective medical evidence weigh against Bagoyan’s
testimony regarding debilitating pain, the surveillance video discredited her
testimony that she is in pain all the time and has difficulty moving. The ALJ’s
findings demonstrate that she did not arbitrarily discredit Bagoyan’s testimony
regarding pain. It is the province of the ALJ, not this Court, to resolve the
conflicting evidence and make credibility determinations, and we should not
disturb the ALJ’s findings when they are supported by substantial evidence.
5
Magallanes, 881 F.2d at 750.
The Commissioner’s decision is supported by substantial evidence, and there
was no legal error.
AFFIRMED.
6