Yang v. Barnhart

246 F. App'x 410

Opinions

MEMORANDUM

**

Petitioner Betty V. Yang (‘Yang”) filed an application for Supplemental Security Income on January 5, 2001. Yang claimed she suffered from back pain, fainting, leg pain, low number of red blood cells, and depression. On January 24, 2003, an Administrative Law Judge (“ALJ”) found that Yang was not disabled and thus not entitled to supplemental security benefits. Yang appealed to the Appeals Council, submitting new evidence, but her appeal was denied. Thereafter she filed suit in the District Court for the Eastern District of California, but on February 23, 2005, the court issued an order affirming the ALJ’s decision.

Because the parties are familiar with the remaining facts and procedural history, we do not restate them here except as necessary to explain our disposition.

I.

We review the district court’s order de novo. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.2002). By contrast we review the ALJ’s decision deferentially. A decision by the ALJ must be affirmed if supported by substantial evidence. See Green v. Heckler, 803 F.2d 528, 529 (9th Cir. 1986). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Morgan v. Apfel, 169 F.3d 595, 599 (9th Cir.1999). Under this standard, if the “evidence is susceptible to more than one rational interpretation, it is the ALJ’s conclusion that must be upheld.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.2005); Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir.1998.) (“If the evidence can reasonably support either affirming or reversing the Secretary’s conclusion, the court may not substitute its judgment for that of the Secretary.”)

II.

With this standard of review in mind we turn to Yang’s three alleged errors.

A.

Yang first argues the ALJ erred in rejecting the opinion of Dr. Barnett. Dr. Barnett performed a one-time psychiatric evaluation on Yang in May 2001. To properly reject Dr. Barnett’s opinion the ALJ was required to set forth specific and legitimate reasons supported by substantial evidence in the record. See Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir.1995). This requirement was satisfied.

There is substantial evidence in the record to support the ALJ’s rationale that Dr. Barnett’s opinion was: (1) based almost entirely on Yang’s subjective reporting and (2) contradicted by the findings of other consulting physicians, which in turn were supported by other evidence in the record. Saelee v. Chater, 94 F.3d 520, 522 (9th Cir.1996) (“The findings of a [consultative] physician can amount to substantial evidence, so long as other evidence in the record supports those findings.”)

In reaching this decision we acknowledge the other reason given by the ALJ for rejecting Dr. Barnett’s opinion—that it was contradicted by Yang’s treatment history—may no longer be supported by substantial evidence. Yang did submit new evidence to the Appeals Council suggesting she was placed into custody for 72 hours because of her depression pursuant to Cal. Wei. & Inst.Code § 5150. Even so, this does nothing to diminish the other specific and legitimate reasons given by the ALJ for rejecting Dr. Barnett’s opinion. See Batson v. Comm’r of the Soc. Sec. Admin., 359 F.3d 1190, 1195-97 (9th Cir. 2004).

B.

Yang next claims the ALJ erred in rejecting the opinion of Dr. Melashenko. Dr. Melashenko was Yang’s primary care physician, treating her numerous times between May 2000 and September 2002. To properly reject the doctor’s opinion the ALJ was required to set forth specific and legitimate reasons supported by substantial evidence in the record. Id. at 1196-97. Again we find this requirement was satisfied.

There is substantial evidence in the record to support the ALJ’s rationale that Dr. Melashenko’s opinion, at the very least, was: (1) not supported by objective medical evidence, id. at 1194-95; (2) based on family member reporting; and (3) contradicted by the findings of other consulting physicians, which in turn were supported by other evidence in the record, Saelee, 94 F.3d at 522.

C.

Yang finally asserts the ALJ posed an improper hypothetical to the Vocational Expert by not mentioning her illiteracy. Yang did not, however, raise this argument before the district court and therefore we will not consider it on appeal. See Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir.1996).

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.