Unpublished Disposition, 933 F.2d 1014 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 933 F.2d 1014 (9th Cir. 1989)

Harutun MARKOSYAN, Plaintiff-Appellant,v.Louis W. SULLIVAN,*  Secretary of Health andHuman Services, Defendant-Appellee.

No. 90-55014.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 8, 1991.Decided May 29, 1991.

Before HUG, WILLIAM A. NORRIS and LEAVY, Circuit Judges.


MEMORANDUM** 

Harutun Markosyan appeals the district court's summary judgment ruling in favor of the Secretary of Health and Human Services denying his application for Supplemental Security Income ("SSI") benefits. The Secretary determined that Markosyan was not "disabled" within the meaning of the Social Security Act. Markosyan contends that, based on medical evidence produced through numerous physical, psychological, psychiatric, and neurological examinations, the Administrative Law Judge's ("ALJ") finding of non-disability is not supported by substantial evidence. Markosyan also contends that the ALJ erred by finding that Markosyan did not meet or equal a listed impairment presumptively entitling him to benefits, and that the district court erred by not remanding his claim for the ALJ to consider newly submitted evidence. We affirm.

I. SUFFICIENCY OF THE EVIDENCE OF NON-DISABILITY

"The general rule is that conflicts in the evidence are to be resolved by the Secretary and that his determination must be upheld when the evidence is susceptible to one or more rational interpretations." Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). In this case, we conclude that substantial evidence that Markosyan is not physically or mentally disabled exists to support the Secretary's denial of benefits and, therefore, the district court's grant of summary judgment in the Secretary's favor.

Markosyan does not appear to dispute meaningfully the ALJ's findings regarding his physical impairments. The ALJ acknowledged evidence of Markosyan's mild arthritis of the lumbar spine, and thereby recognized that Markosyan was limited to performing light work not involving the lifting of over 50 pounds. This finding was consistent with Markosyan's subjective complaints of pain, Dr. Goodman's diagnosis of possible rheumatoid arthritis, and Dr. Treyzon's diagnosis of osteoarthritis of the lumbar spine.

Instead, the principal evidentiary dispute in this case concerns the existence of a disabling mental disorder. In addition to Markosyan's own testimony, the testimony of his wife, and Markosyan's complaints to various examiners of symptoms such as anxiety, boredom, nervousness, depression, difficulty sleeping, poor memory and concentration, high emotional levels, headaches, and inability to care for himself, Markosyan relies on the opinion of Dr. Gindi, his treating physician and a general practitioner, that he is completely disabled due to psychiatric conditions. Markosyan also relies on the opinion of Dr. Yetenekian that, based on Markosyan's low IQ test scores, he is permanently disabled due to mild mental retardation and mixed organic brain syndrome. Finally, Markosyan relies on the opinion of Dr. Miles, a psychiatrist referred by Markosyan's counsel subsequent to the decision of the ALJ, that he is unable to work.

This evidence of mental impairment, however, contradicts the opinions and diagnoses of at least four other examiners. First, Dr. Goodman, a neurologist referred by Markosyan's treating physician, reported no neurological abnormalities. Second, Dr. Treyzon, an internist referred by SSA, reported that the results of a "mental status evaluation" were normal, revealing no abnormalities. Third, Dr. Imani, a psychiatrist and neurologist referred by SSA, reported similar results and further opined that Markosyan was "malingering," was "absolutely able to work" in a low-stress job, and "had been coached to act psychotic" to obtain benefits. Finally, Dr. Brodsly, a psychologist also referred by SSA, reported that, despite low IQ test scores that suggested possible mild mental retardation and minimal organic impairment, his opinion was that Markosyan was not retarded, and should more likely be diagnosed with a histrionic personality disorder.

We conclude that this evidence is more than sufficient to uphold the Secretary's denial of benefits. See Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985) (noting that existence of evidence that supports findings of both disability and non-disability requires court to affirm decision made by Secretary). The ALJ properly disregarded the opinion of Markosyan's treating physician by making "findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record." Winans, 853 F.2d at 647 (citations and internal quotations omitted).

II. SUFFICIENCY OF THE EVIDENCE OF A LISTED IMPAIRMENT

Markosyan contends the ALJ erred by failing to find him presumptively disabled based on evidence that he met or equaled a listed impairment under 20 C.F.R. Sec. 416.920(d). The relevant medical listing in this case is the listed impairment for mental retardation contained in 20 C.F.R. Sec. 404, Subpart P, Appendix 1. According to Markosyan, his impairments meet or equal the impairment listed in section 12.05(B) of this section, which provides, in relevant part, as follows:

12.05 Mental Retardation ...: Mental retardation refers to a significantly subaverage general intellectual functioning with deficits in adaptive behavior initially manifested during the development period (before age 22).

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The required level of severity for this disorder is met when the requirements in A, B, C, or D are satisfied.

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B. A valid verbal, performance, or full scale IQ of 59 or less;

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Markosyan relies on an IQ test administered during a psychological examination by Dr. Yetenekian to support his claim that he has met the requirements for this listing. Dr. Yetenekian's IQ tests resulted in a full-scale score of 59, thereby meeting the listed impairment requirement set forth in section 12.05(B). Based on these test results, Dr. Yetenekian concluded that Markosyan was permanently disabled due to indications of mild mental retardation and mixed organic brain syndrome.

We conclude that substantial evidence exists to support the ALJ's finding that Markosyan has nevertheless failed to meet the listed impairment for mental retardation under section 12.05(B) because these IQ tests were not credible. Although the results of the IQ tests administered by Dr. Yetenekian did facially satisfy the requirements under section 12.05(B), Dr. Yetenekian's diagnosis of mild mental retardation and mixed organic brain syndrome, and his opinion that Markosyan is permanently disabled, appear inconsistent with his opinion that Markosyan's psychological testing reflected no major psychiatric disturbance, and that Markosyan displayed average functioning verbal expressive and abstract reasoning skills.

These inconsistencies are further revealed in conclusions provided by Dr. Brodsly whose IQ tests resulted in a full-scale score of 52, thereby also meeting the section 12.05(B) listed impairment requirement. Based on these test results, Dr. Brodsly offered a possible diagnosis similar to the diagnosis reported by Dr. Yetenekian--mild mental retardation and minimal organic impairment. Dr. Brodsly's opinion, however, was that Markosyan was not mentally retarded but instead exhibited "acting out" behavior more consistent with a histrionic personality disorder. According to Dr. Brodsly, Markosyan exhibited "minimal effort" on the examinations, leading him to believe that Markosyan was "attempting to convince the examiner of an innate lack of ability." Based on this and the abundance of conflicting information Markosyan had provided to previous examiners, Dr. Brodsly questioned Markosyan's overall credibility.

Finally, there has been no evidence presented that would satisfy the additional requirement for finding a listed impairment under section 12.05(B), namely that the deficient intellectual functioning and behavior be "initially manifested during the developmental period (before age 22)." 20 C.F.R. Sec. 404, Subpart P, App. 1, Sec. 12.05. Thus, despite evidence of IQ test results that fall within section 12.05(B)'s express requirements for a listed impairment based on mental retardation, we conclude that substantial evidence exists to support the ALJ's finding that Markosyan has failed to meet or equal a listed impairment entitling him to a presumption of disability and an award of benefits. See Winans, 853 F.2d at 647 (noting that Secretary's resolution of conflict in evidence must be upheld if susceptible to more than one rational interpretation).

Finally, Markosyan contends the district court erred by refusing to remand to the ALJ newly submitted evidence. This evidence constists of a July 27, 1989 report by Dr. Ter-Zakarian, and affidavits prepared by Markosyan and two of Markosyan's former neighbors from when he lived in Armenia that have been submitted for the first time on appeal. The district court found that Dr. Ter-Zakarian's "new report does not break new ground and is less thorough than reports already in the record." Our review of this new report confirms the district court's finding.

The affidavits are similarly cumulative of evidence previously considered by the ALJ. Moreover, Markosyan has failed to persuade us why the report and the three affidavits could not have been submitted at the time of the ALJ hearing. We conclude that this new evidence is therefore not material, and good cause does not exist for the failure to bring this evidence before the ALJ at the time of the hearing. See Cotton v. Bowen, 799 F.2d 1403, 1409 (9th Cir. 1986) (per curiam). Accordingly, Markosyan's request for a remand is without merit.

AFFIRMED.

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Louis W. Sullivan, who succeeded Otis R. Bowen as Secretary of Health and Human Services, is substituted as defendant-appellee in this case. Fed. R. App. P. 43(c) (1)

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3