Bibi Rakhsana Hayee v. Commissioner of Social Security

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 William H. Stafford, Jr., Senior District Judge for the***
U.S. District Court for the Northern District of Florida, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BIBI RAKHSANA HAYEE,
Plaintiff - Appellant,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant - Appellee.
No. 11-17445
D.C. No. 2:09-cv-02285-KJN
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Kendall J. Newman, Magistrate Judge, Presiding
Submitted June 11, 2013**
San Francisco, California
Before: TASHIMA and BYBEE, Circuit Judges, and STAFFORD, Senior District
Judge.***
Bibi Rukhsana Hayee appeals the district court's decision affirming the
FILED
JUN 26 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 4 --

2
Administrative Law Judge's ("ALJ") denial of her application for disability
insurance benefits and supplemental security income. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm the district court's order.
We review de novo the district court's order affirming the ALJ's denial of
benefits. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). We may
reverse only if the ALJ's decision was based on legal error or was not supported by
substantial evidence in the record as a whole. Molina v. Astrue, 674 F.3d 1104,
1110 (9th Cir. 2012). "The ALJ is responsible for determining credibility,
resolving conflicts in medical testimony, and resolving [any other] ambiguities"
that might exist. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).
Because the factual and procedural background is familiar to the parties, we do not
recount it here.
Hayee first argues that the ALJ erred at Step Two of the sequential analysis
by failing to follow the "special technique" required by 20 C.F.R. § 404.1520a for
evaluating mental impairments. Hayee admits that she did not raise this argument
before the district court. As a general rule, this court does not consider issues that
were not first raised before the district court. Edlund, 253 F.3d at 1158. Although
this court has the discretion to make an exception to waiver in certain
circumstances, we find no circumstances in this case that would justify such an

-- 2 of 4 --

3
exception. Accordingly, we conclude that Hayee has waived her first issue on
appeal.
Hayee next argues that the ALJ erred by failing to provide "clear and
convincing" reasons for rejecting the opinion of Dr. Kalman, an examining
psychiatrist who met with Hayee on only one occasion. The record, however,
belies Hayee's argument in this regard. The ALJ well explained that she gave little
weight to Dr. Kalman's report because it was not based on observation of Hayee
over an extended period of time, was not supported by objective clinical testing,
was not consistent with Hayee's own characterization of her condition, and was
overly reliant on the less-than-credible statements of Hayee, who was described by
Dr. Kalman himself as "a poor historian." Because the ALJ discounted Dr.
Kalman's report based on specific, legitimate reasons that were supported by
substantial evidence, we find no merit to Hayee's second argument on appeal.
Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995) (noting that when an
examining physician's opinion has been contradicted, an ALJ may reject it only by
providing "specific and legitimate reasons that are supported by substantial
evidence in the record").
Finally, Hayee argues that the ALJ's residual functional capacity ("RFC")
finding was not based on substantial evidence. We disagree. The ALJ gave

-- 3 of 4 --

4
specific and legitimate reasons, supported by substantial evidence, for finding
Hayee to be "not entirely credible" about her symptoms and limitations, for giving
little weight to Dr. Kalman's mental impairment assessment, for rejecting Dr.
Tanson's functional capacity assessment, and for giving significant weight to the
functional capacity assessment of Dr. Garfinkel, the only physician whose opinion
was both consistent with the record evidence and supported by objective findings.
Based largely on Dr. Garfinkel's assessment, the ALJ properly included in her
RFC determination all of those limitations that she found to be credible and
supported by substantial evidence.
AFFIRMED.

-- 4 of 4 --