                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            OCT 18 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


HAROUTYUN KARABAJAKYAN,                          No.   15-55242

              Plaintiff-Appellant,               D.C. No.
                                                 2:14-cv-01024-SJO-AN
 v.

NANCY A. BERRYHILL, Acting                       MEMORANDUM*
Commissioner of the Social Security
Administration,

              Defendant-Appellee.


                    Appeal from the United States District Court
                        for the Central District of California
                     S. James Otero, District Judge, Presiding

                           Submitted October 18, 2017 **


Before: CLIFTON, N.R. SMITH, and CHRISTEN, Circuit Judges.

      Haroutyun Karabajakyan appeals pro se the district court’s decision

affirming the Commissioner of Social Security’s denial of Karabajakyan’s


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
application for disability insurance benefits and supplemental security income

under Titles II and XVI of the Social Security Act. We review de novo, Ghanim v.

Colvin, 763 F.3d 1154, 1159 (9th Cir. 2014), and affirm.

      Karabajakyan contends that the administrative law judge (“ALJ”) erred in

rejecting his testimony about his symptoms and limitations. We disagree. The

ALJ provided two, specific, clear and convincing reasons for finding

Karabajakyan’s symptom testimony less than fully credible: (1) the considerable

gaps in his cardiac treatment; and (2) his failure to follow medical advice,

including his refusal to undergo recommended testing and treatment. See Fair v.

Bowen, 885 F.2d 597, 603–04 (9th Cir. 1989) (explaining that “unexplained, or

inadequately explained” failure to seek treatment and failure to follow a prescribed

course of treatment can constitute clear and convincing reasons for discounting a

claimant’s credibility regarding his or her symptoms). The record reflects a nearly

seven-year gap between Karabajakyan’s 2004 visit to one cardiologist and his next

visit to another cardiologist in 2011. Even if Karabajakyan had limited funds and

no medical insurance, the ALJ permissibly concluded that Karabajakyan’s ability

to seek and obtain low-cost medical care during the relevant period supports a

reasonable inference that he could have obtained some cardiac care had his

symptoms from his heart condition been as disabling as he reported. See Orn v.


                                          2
Astrue, 495 F.3d 625, 638 (9th Cir. 2007); see also Fair, 885 F.2d at 603 (“While

there are any number of good reasons for not [seeking treatment], a claimant’s

failure to assert one, or a finding by the ALJ that the proffered reason is not

believable, can cast doubt on the sincerity of the claimant’s pain testimony.”)

(internal citations omitted); see also Flaten v. Sec’y of Health and Human Servs.,

44 F.3d 1453, 1464 (9th Cir. 1995) (noting that the ALJ properly discounted

claimant’s assertion “that lack of money prevented her from seeking help for

ongoing problems, because she sought appropriate medical care from a [doctor] for

other medical symptoms . . . during the intervening years”). Karabajakyan’s

argument that, because he completed medical training in Armenia, he does not

need to “run to a doctor with every pain or discomfort,” does not explain the long

gap in treatment for what he alleges is a disabling cardiac condition.

      Finally, the record contains no medical records to substantiate

Karabajakyan’s claim that he was seen by cardiologists while in Armenia in 2008,

nor would one month of treatment in Armenia undermine the ALJ’s reasoning

about the considerable gaps in seeking cardiac treatment. As a result, any error in

the ALJ’s third reason—Karabajakyan’s continued smoking against medical

advice—was harmless because the ALJ’s specific findings regarding

Karabajakyan’s refusal to seek regular cardiac care and to submit to the testing and


                                           3
treatment recommended by his treating physicians were clear and convincing

reasons. See Bray v. Astrue, 554 F.3d 1219, 1227 (9th Cir. 2009) (affirming an

adverse credibility determination that rested in part on the fact that the claimant

failed to quit smoking because the ALJ provided other independent bases for

discounting the claimant’s testimony).

      Karabajakyan contends that the ALJ improperly gave little weight to the

opinion of his treating physician, Manvel M. Mazmanyan, M.D., which was

recorded on a physical Residual Functional Capacity (“RFC”) Assessment form

completed in January 2012. We disagree. The ALJ provided a specific and

legitimate reason for giving little weight to Dr. Mazmanyan’s opinion: his

statement was not supported by the sparse medical record, and it lacks objective

medical evidence for the limitations he imposed. Neither the RFC Assessment

form nor Dr. Mazmanyan’s earlier treatment notes provide any information about

how Karabajakyan’s diagnoses translate into the specific and severe limitations

detailed in the RFC Assessment, e.g., leg elevation and frequency of required

breaks. See Connett v. Barnhart, 340 F.3d 871, 874–75 (9th Cir. 2003) (holding

that the ALJ did not err in rejecting the controverted opinion of a treating physician

whose restrictive functional assessment was not supported by treatment notes);

Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (“The ALJ need not accept


                                           4
the opinion of any physician, including a treating physician, if that opinion is brief,

conclusory, and inadequately supported by clinical findings.”).

      We also disagree with Karabajakyan’s contention that the ALJ should have

granted his request for a pre-hearing on the record (“OTR”) decision on the basis

of record evidence demonstrating that he met Listing 4.02A1 and B1 for cardiac

impairments (“the cardiac listing”). The long gaps in Karabajakyan’s cardiac

treatment, coupled with his refusal to comply with his doctors’ advice and

recommendations, support the ALJ’s determination that Karabajakyan failed to

satisfy Listing 4.02’s introductory requirement that a claimant present evidence of

chronic heart failure “while on a regimen of prescribed treatment.” 20 C.F.R. Pt.

404, Subpt. P, App. 1, Listing 4.02. As a result of failing to show that the listing’s

introductory requirement was met, Karabajakyan failed to establish that he was

entitled to a favorable finding at Step 3. Tackett v. Apfel, 180 F.3d 1094, 1099 (9th

Cir. 1999) (“To meet a listed impairment, a claimant must establish that he or she

meets each characteristic of a listed impairment relevant to his or her claim.”).

Because Karabajakyan failed to establish that he met essential requirements for

Listing 4.02 at the time of his hearing, the ALJ did not err by failing to issue an

OTR decision prior to the hearing date. See Curry v. Sullivan, 925 F.2d 1127,




                                           5
1131 (9th Cir. 1991) (applying harmless error rule to review of administrative

decisions regarding disability).

      Karabajakyan also contends that the ALJ failed to include all of his

limitations in the RFC assessment and the hypothetical questions posed to the

vocational expert (“VE”), and that, as a result, the ALJ’s Step 5 determination is

incorrect. We disagree. The ALJ gave clear and convincing reasons for

discounting Karabajakyan’s symptom testimony and specific and legitimate

reasons for giving limited weight to Dr. Mazmanyan’s opinion that Karabajakyan’s

limitations exceeded those set out in the RFC. For this reason, the ALJ did not

need to incorporate those limitations in the RFC finding or in the hypothetical

questions posed to the VE. See 20 C.F.R. §§ 404.1545(a), 416.945(a); Bayliss v.

Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005); Osenbrock v. Apfel, 240 F.3d 1157,

1163 (9th Cir. 2001). Moreover, because the functional limitations identified by

the ALJ in the RFC for light work were supported by the medical evidence the ALJ

credited, and because the record contains no medical evidence supporting

Karabajakyan’s assertion that the ALJ erred by not incorporating limitations

related to his suffering from hemorrhoids, the ALJ’s Step 5 determination is

supported by substantial evidence. See Magallanes v. Bowen, 881 F.2d 747,

756–57 (9th Cir. 1989).


                                          6
      Finally, Karabajakyan’s contentions that the ALJ was biased against him,

and that the Appeals Council erred in denying his request for review, lack merit.

The record does not support his allegations that the ALJ’s behavior reflected a

clear inability to render fair judgment. The presumption of impartiality was not

rebutted. Rollins v. Massanari, 261 F.3d 853, 857–58 (9th Cir. 2001).

Additionally, this court lacks jurisdiction to review the Appeals Council’s denial

of a request for review, which is a non-final agency action. Brewes v. Comm’r of

Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012).

      AFFIRMED.




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