George Arreola v. Carolyn W. Colvin

Filing 20

MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner. (See document for further details). (bpo) (Entered: 06/14/17)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11

GEORGE ARREOLA,

12

Case No. CV 16-07224 SS
Plaintiff,

13

v.

14

MEMORANDUM DECISION AND ORDER

NANCY BERRYHILL,1
Acting Commissioner of the
Social Security Administration,

15
16

Defendant.

17
18
19
20
I.

21

INTRODUCTION

22
23
24

George Arreola (“Plaintiff”) brings this action seeking to

25

overturn the decision of the Commissioner of the Social Security

26
27
28

Nancy A. Berryhill is now the Acting Commissioner of Social
Security and is substituted for Acting Commissioner Carolyn W.
Colvin in this case. See 42 U.S.C. § 405(g).
1

1

Administration

2

application

3

parties

4

jurisdiction of the undersigned United States Magistrate Judge.

5

(Dkt. Nos. 9-10).

6

the Commissioner’s decision.

(the

for

“Commissioner”

Disability

consented,

or

Insurance

pursuant

to

28

“Agency”)
Benefits

U.S.C.

§

denying

(“DIB”).
636(c),

his
The

to

the

For the reasons stated below, the Court AFFIRMS

7
8

II.

9

PROCEDURAL HISTORY

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

On July 2, 2012, Plaintiff filed an application for DIB.
(Administrative Record (“AR”) 180-183).

Plaintiff alleged that he

became unable to work on August 27, 2011 due to right/left rotator
cuff

syndrome/joint

acromioclavicular joint.

pain

and

(AR 196).

application on January 9, 2013.

closed

dislocation

of

The Agency denied Plaintiff’s

(AR 100-103).

On May 29, 2013,

the Agency denied Plaintiff’s application upon reconsideration.
(AR

105-108).

Plaintiff

then

requested

Administrative Law Judge (“ALJ”).

a

hearing

before

On August 19, 2014, ALJ Michael

Kopicki conducted a hearing to review Plaintiff’s claim.
80).

(AR 50-

The ALJ continued the hearing so that Plaintiff could be

evaluated by an orthopedic consultative examiner.

(AR 78-79, 569).

On April 16, 2015, the ALJ held a supplemental hearing.
49).

an

(AR 26-

On June 16, 2015, the ALJ found that Plaintiff was not

disabled under the Social Security Act.

(AR 8-24).

On June 19,

2015, Plaintiff sought review of the ALJ’s decision before the
Appeals Council.

(AR 5-7).

The Appeals Council denied Plaintiff’s

28
2

1

request on August 23, 2016.

2

became the final decision of the Commissioner.

3

the instant action on September 26, 2016.

(AR 1-3).

The ALJ’s decision then
Plaintiff commenced

(Dkt. No. 1).

4
5

III.

6

FACTUAL BACKGROUND

7
8
9

Plaintiff was born on May 29, 1957.

(AR 55).

He was 54 years

old as of the alleged disability onset date of August 27, 2011.

10

He was 57 years old when he appeared before the ALJ.

11

Plaintiff completed the twelfth grade.

12

Plaintiff worked as a truck driver.

(Id.).

(Id.).

From 1981 to 2011,

(AR 197).

13
14

A. Plaintiff’s Testimony

15
16

Plaintiff testified that he lives with his wife in their

17

house.

18

his current source of income is his retirement.

19

that he receives $2,199 a month.

20

health insurance.

21

building, which was unoccupied at the time of the hearing.

22

55).

23

years old at the time of the hearing.

24

stated that he has three or four grandkids.

25

does not really see them.

(AR 54).

His wife has four dogs.

(AR 54-55).

(AR 64).

(Id.).

He stated that

(Id.).

He stated

He pays $530.03 for

Plaintiff also owns a rental
(AR

Plaintiff stated that he has one daughter, who was around 39
(Id.).

Plaintiff also

(AR 64).

However, he

(Id.).

26
27
28

Plaintiff testified that he last worked on August 27, 2011.
3

1

(AR 55).

2

making baked goods deliveries in Arizona.

(AR 32, 56).

3

worked for Hostess for about 31 years.

(AR 34).

4

that, in his best year, he made almost $85,000 to $90,000.

5

Plaintiff stopped doing this job because he had a motorcycle

6

accident.

(Id.).

Plaintiff stated that he cannot recall the whole

7

accident.

(Id.).

He testified that a witness “said a car cut the

8

car in front of [him] that [he] was following, and then [he] hit

9

[his] brakes” and lost control.

He had been driving a tractor-trailer truck for Hostess,

(AR 57).

Plaintiff

He testified
(Id.).

Plaintiff testified that

10

he injured his shoulders.

11

Plaintiff decided to exercise his option for early retirement.

12

56).

(AR 56, 57).

After the accident,
(AR

13
14

Plaintiff testified that he has to sleep on his back.

(AR

15

58).

16

throbbing.

17

little bit.

18

pain throughout the course of the day.

19

involving pushing, such as cutting the grass, hurt him.

20

Plaintiff stated that he is weaker since he stopped working because

21

he has partial tears in his shoulders and does not want to put

22

stress on them. (AR 60). Plaintiff stated that he is not currently

23

on treatment for his shoulders.

24

medication or going to physical therapy for his shoulders.

In the morning, he will feel either one of his shoulders
(Id.).
(Id.).

The pain subsides once he has been up for a
If he does not do anything, he will not have

(Id.).

(AR 59).

Activities
(Id.).

He is not taking any
(Id.).

25
26
27
28

Plaintiff also testified that he was diagnosed with sleep
apnea around 2011.

(AR 36, 60).
4

He stated that he was provided

1

with a Continuous Positive Airway Pressure (“CPAP”) machine.

2

60).

3

thinks the CPAP machine makes him even more tired.

4

testified that he wakes up at four in the morning and has to remove

5

it.

6

from the CPAP machine.

7

had the sleep problems for a while.

8

that he will sometimes nap for two or three hours.

However, the machine “doesn’t feel good.”

(Id.).

(Id.).

(AR

Plaintiff
(Id.).

He

Plaintiff stated that he does not think he benefits
(AR 37).

Plaintiff testified that he has
(AR 60-61).

Plaintiff stated
(AR 62).

9
10

Plaintiff testified that, on a normal day, he wakes up, walks

11

for two or three hours, returns home and naps.

12

that when he is walking, he is looking for people who might want

13

to talk with him about the Bible.

14

“piddle[s]” around the house and cleans up.

15

testified that he washes dishes, rakes leaves, and takes out the

16

trash.

17

If his arms or shoulders get tired, he rests and comes back to

18

finish.

(AR 63).

(AR 37).

(AR 62).

He stated

After his nap, he
(AR 62).

Plaintiff

He stated that he also mows the yard.

(Id.).

(Id.).

19
20

Plaintiff testified that he used to fix up old cars, but can

21

no longer afford to. (AR 64).

22

driving he switches from one arm to the other because of his

23

shoulder pain.

24

three bags of dog food, weighing fifty pounds each, and was hurting

25

for the next three or four days.

26

(AR 65).

Plaintiff testified that when he is

He stated that he once picked up two or

(Id.).

Plaintiff testified that he is “okay” walking.

(AR 66).

He

27

stated that he has flank pain when he sits for a while that he

28

needs to massage.

(Id.).

Plaintiff stated that he had been doing
5

1

shoulder exercises with physical therapy, but MRIs showed tears

2

and he was instructed to stop the exercises.

(AR 68).

3
4

At his second hearing, Plaintiff testified that he bought $200

5

worth of supplements, including powders for inflammation.

6

He stated that he thought the supplements were “keeping [him] at

7

bay.”

8

for his shoulders because he was keeping things “at bay.”

9

Other than his supplements and back-up Ibuprofen, Plaintiff stated

10

(Id.).

(AR 38).

He also stated that he was not seeing any physicians

that he is not taking any medication.

(AR 39).

(Id.).

11
12

B. Consultative Examiner, Dr. Warren Yu

13
14

On November 1, 2014, orthopedic surgeon Dr. Warren Yu, M.D.,

15

conducted a complete orthopedic consultation of Plaintiff.

16

569-583).

17

shoulders.

18

rotator cuff tear with an old grade 1 AC joint injury on the right

19

side.

(AR

Dr. Yu also reviewed MRI reports of both of Plaintiff’s
(AR 569).

Dr. Yu stated that the MRIs noted partial

(Id.).

20
21

Under “Shoulders,” Dr. Yu noted that Plaintiff has tenderness

22

of both AC joints.

23

deformity.

24

motion of both shoulders.”

25

has “positive impingement 1 and 2 signs of both shoulders. Negative

26

Jobe’s testing.

(Id.).

(AR 571).

He stated that there was no gross

He noted that Plaintiff “has full range of
(Id.).

No atrophy.

He further noted that Plaintiff

Negative liftoff test.”

(Id.).

27
28

Under “Clinical Impression,” Dr. Yu noted that Plaintiff “is
6

1

able to push and pull with his upper extremities on a frequent

2

basis.”

3

be done frequently, bilaterally.”

4

Plaintiff is able to “lift and carry 50 pounds occasionally and 25

5

pounds frequently.”

6

Source Statement (MSS), Dr. Yu checked off boxes indicating that

7

Plaintiff could only lift and carry “11 to 20 lbs” occasionally

8

and “up to 10 lbs” frequently.

(AR 572).

Dr. Yu commented that “[o]verhead reaching can

(AR 572).

(AR 573).

Dr. Yu stated that

However, on a corresponding Medical

(AR 574).

9
10

On December 15, 2014, the ALJ contacted Dr. Yu requesting that

11

he clarify his conflicting opinions.

12

2014, Dr. Yu responded, confirming that Plaintiff could lift and

13

carry “50 pounds occasionally and 25 pounds frequently.”

14

He stated that he “mistakenly marked the wrong boxes on the MSS

15

forms.”

(AR 251).

On December 23,

(AR 582).

(Id.).

16
17

On January 21, 2015, Plaintiff’s counsel wrote to the ALJ

18

requesting a supplemental hearing.

19

also requested that the ALJ subpoena Dr. Yu to that hearing. (Id.).

20

The ALJ denied Plaintiff’s request to subpoena Dr. Yu to the

21

supplemental hearing.

(AR 266).

Plaintiff’s counsel

(AR 178).

22
23
24

C. State Agency Reviewing Physicians

25
26

1. V. Phillips, M.D.

27
28

On January 8, 2013, State Agency reviewing physician, V.
7

1

Phillips, M.D., reviewed Plaintiff’s medical records and provided

2

a medical assessment.

3

Plaintiff could occasionally lift and/or carry 50 pounds.

4

He also opined that Plaintiff could frequently lift and/or carry

5

25 pounds.

6

extremities

7

elaborated

8

activities involving the BUE = OCC.”

9

occasional

10

(Id.).
for

(AR 84-86).

(AR 85).

Dr. Phillips opined limitations in both upper

pushing

that

Dr. Phillips opined that

and

Plaintiff

“overhead

pulling.
should

reaching

(Id.).

avoid

extremities] ABOVE CHEST LEVEL.”

“frequent

(Id.).

involving

Dr.

Phillips
push/pull

Dr. Phillips opined

the

[bilateral

upper

(AR 86).

11
12

2. Murari Bijpuria, M.D.

13
14

On May 29, 2013, State Agency reviewing physician, Dr. Murari

15

Bijpuria, M.D., reviewed Plaintiff’s medical records and provided

16

a medical assessment.

17

Plaintiff could occasionally lift and/or carry 50 pounds.

18

He also opined that Plaintiff could frequently lift and/or carry

19

25 pounds.

20

extremities

21

elaborated

22

activities involving the BUE = OCC.”

(Id.).
for
that

(AR 95-96).

Dr. Phillips opined that
(AR 95).

Dr. Bijpuria opined limitations in both upper

pushing

and

Plaintiff

pulling.
should

(Id.).

avoid

Dr.

“frequent

(AR 95).

Bijpuria
push/pull

Dr.

23
24

Bijpuria

25

[bilateral upper extremities] ABOVE CHEST LEVEL.”

opined

occasional

“overhead

26
27

D. Medical Records Regarding Sleep Apnea

28
8

reaching

involving
(AR 96).

the

1

On July 29, 2013, Plaintiff visited physicians at Kaiser

2

Permanente.

3

evaluation for sleep apnea.

4

records indicate that a sleep study revealed evidence of a sleep

5

related breathing disorder.

6

CPAP titration was done and Plaintiff tolerated it well.

7

Medical records from August 28, 2013 state that Plaintiff was

8

“tested to rule out Obstructive Sleep Apnea.”

9

records go on to note that the “diagnostic portion of the study

10

(AR 499).

At this visit, Plaintiff requested an
(Id.).

On August 26, 2013, medical

(AR 512).

These records note that

indicates Mild Obstructive Sleep Apnea (OSA)”.

(Id.).

(AR 522).

The

(Id.).

11
12

E. Vocational Expert Testimony

13
1. Carmen Roman

14
15

Vocational Expert (“VE”) Carmen Roman testified at Plaintiff’s

16
17
18
19
20
21
22

first hearing before the ALJ.
Plaintiff’s

past

work

as

a

(AR 69-78).

The VE testified that

tractor-trailer

904.383.010) classified as medium, SVP 4.

truck

(AR 69).

driver

(DOT

She stated

that records indicate Plaintiff lifted up to a hundred pounds, in
which case the job would have been performed at the heavy level.
(Id.).

23
The ALJ asked the VE to consider a series of factors in

24
25
26
27
28

creating a hypothetical for determining Plaintiff’s ability to
work.

(AR 69-70).

The ALJ’s hypothetical included a person with

certain postural limitations.
hypothetical

individual

could

(Id.).
do
9

VE Roman testified that the

Plaintiff’s

past

work

as

a

1

tractor-trailer truck driver as it is generally performed, but not

2

as Plaintiff actually performed it.

(AR 70).

3
4

The

5

hypothetical.

6

work consistent with the described limitations and vocational

7

factors, including industrial cleaner (DOT 381.687-018, medium,

8

SVP 2, one million jobs in national economy), linen room attendant

9

(DOT 222.387-030, medium, SVP 2, 1.7 million jobs in national

10

economy), and food service worker (DOT 319.677-014, medium, SVP 2,

11

200,000 jobs in national economy).

ALJ

then
(AR 70).

introduced

vocational

factors

to

the

VE Roman testified that she could identify

(AR 70-71).

12
13

The ALJ then asked the VE to consider that the hypothetical

14

individual needed to nap for several hours around lunchtime every

15

day.

16

in any of the jobs mentioned.

(AR 72).

The VE testified that this would not be tolerated
(AR 73).

17
18

2. Elizabeth Brown-Ramos

19
20

VE

Elizabeth

Brown-Ramos

testified

at

Plaintiff’s

second

21

hearing before the ALJ.

22

Plaintiff’s

23

905.663014, medium, SVP 4, semi-skilled.

24

testified

25

transfer with little or no adjustment to light work.

26

ALJ asked the VE to consider a series of factors in creating a

27

hypothetical for determining Plaintiff’s ability to work.

28

42).

past

that

work

there

(AR 40-48).
as

are

a

no

truck

The VE testified that

driver

acquired

classified

as

(AR 40-41).

work

skills

DOT

The VE

that

would

(AR 41).

The

(AR 41-

The VE testified that the hypothetical individual would be
10

1

capable of performing Plaintiff’s past work.

(AR 41-42).

2
3

The ALJ added an additional postural restriction of overhead

4

reaching from chest level up.

5

individual with this restriction could not perform Plaintiff’s past

6

work.

7

eliminate linen room worker and food service worker.

8

VE stated that work as an industrial cleaner (DOT 381.687-018,

9

200,000 jobs in the national economy) could still be done within

10

the restrictions. (Id.). The VE also stated that work as a factory

11

helper (DOT 529.686-034, medium, SVP 2, 68,000 jobs in the national

12

economy) and machine packager (DOT 920.685-078, medium, SVP 2,

13

120,000 jobs in the national economy) could still be done within

14

the restrictions.

15

needed to take breaks amounting to ten percent of the workday would

16

not be able to do these jobs.

(AR 43).

(AR 42).

The VE testified that an

The VE testified that the restriction would also

(AR 46).

(AR 44).

The

The VE stated that an individual who

(AR 47-48).

17
18

IV.

19

THE FIVE STEP SEQUENTIAL EVALUATION PROCESS

20
21

To

qualify

for

disability

benefits,

a

claimant

must

22

demonstrate a medically determinable physical or mental impairment

23

that prevents him from engaging in substantial gainful activity2

24

and that is expected to result in death or to last for a continuous

25

period of at least twelve months.

Reddick v. Chater, 157 F.3d 715,

26
27
28

Substantial gainful activity means work that involves doing
significant and productive physical or mental duties and is done
for pay or profit. 20 C.F.R. §§ 404.1520, 416.910.
2

11

1

721

2

impairment must render the claimant incapable of performing the

3

work he previously performed and incapable of performing any other

4

substantial gainful employment that exists in the national economy.

5

Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42

6

U.S.C. § 423(d)(2)(A)).

(9th

Cir.

1998)

(citing

42

U.S.C.

§ 423(d)(1)(A)).

The

7
8
9
10

To decide if a claimant is entitled to benefits, an ALJ
conducts a five-step inquiry.

20 C.F.R. §§ 404.1520, 416.920.

steps are:

11
12

(1)

Is the claimant presently engaged in substantial

13

gainful activity?

14

not disabled.

If so, the claimant is found

If not, proceed to step two.

15
16

(2) Is the claimant’s impairment severe?

17

claimant is found not disabled.

18

step three.

If not, the

If so, proceed to

19
20

(3) Does the claimant’s impairment meet or equal one

21

on the list of specific impairments described in

22

20 C.F.R. Part 404, Subpart P, Appendix 1?

23

the claimant is found disabled.

24

to step four.

If so,

If not, proceed

25
26

(4) Is the claimant capable of performing his past

27

work?

28

If not, proceed to step five.

If so, the claimant is found not disabled.

12

The

1
2

(5) Is the claimant able to do any other work?

3

the

4

If not,

claimant is found not disabled.

claimant

is

found

disabled.

If

so,

the

5
6
7
8
9

Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari,
262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett); 20 C.F.R.
§§ 404.1520(b)-404.1520(f)(1) & 416.920(b)-416.920(f)(1).

10
The claimant has the burden of proof at steps one through four

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

and

the

Commissioner

has

the

burden

Bustamante, 262 F.3d at 953-54.

of

proof

at

step

five.

If, at step four, the claimant

meets his burden of establishing an inability to perform past work,
the Commissioner must show that the claimant can perform some other
work that exists in “significant numbers” in the national economy,
taking into account the claimant’s residual functional capacity
(“RFC”), age, education, and work experience.
at

1098,

1100;

Reddick,

157

404.1520(f)(1), 416.920(f)(1).

F.3d

at

Tackett, 180 F.3d

721;

20

C.F.R.

§§

The Commissioner may do so by the

testimony of a vocational expert or by reference to the MedicalVocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P,
Appendix 2 (commonly known as “the grids”).

Osenbrock v. Apfel,

240 F.3d 1157, 1162 (9th Cir. 2001) (citing Tackett). When a
claimant has both exertional (strength-related) and nonexertional
limitations, the Grids are inapplicable and the ALJ must take the
testimony of a vocational expert.
869 (9th Cir. 2000).
13

Moore v. Apfel, 216 F.3d 864,

1
2

V.

3

THE ALJ’S DECISION

4
5

On June 16, 2015, after employing the five-step sequential

6

evaluation

7

Plaintiff is not disabled within the meaning of the Social Security

8

Act. (AR 20).

process,

the

ALJ

issued

a

decision

finding

that

9
10

At step one, the ALJ observed that Plaintiff had not engaged

11

in substantial gainful activity since August 27, 2011, the alleged

12

onset date.

(AR 14).

13
14

At step two, the ALJ found that Plaintiff’s severe impairments

15

were degenerative joint disease of the bilateral shoulders and

16

history of left scapula fracture.

(Id.).

17
18

At step three, the ALJ concluded that Plaintiff did not have

19

an impairment or combination of impairments that meets or medically

20

equals the severity of one of the listed impairments in 20 CFR Part

21

404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525,

22

404.1526, 416.920(d), 416.925-26).

(AR 15).

23
24

The ALJ then found that Plaintiff had the following RFC:

25
26
27
28

[H]e can lift and carry fifty pounds occasionally and
twenty-five pounds frequently; he can stand and walk, with
normal breaks, for six hours in an eight-hour workday; he
can sit, with normal breaks, for six hours in an eight-hour
workday; he can frequently push and pull with bilateral
14

upper extremities; he can occasionally climb ladders,
ropes, and scaffolds; he can occasionally crawl; and he can
perform no more than occasional overhead reaching (defined
as above-the-chest and above-the-shoulder reaching) with
the bilateral upper extremities.

1
2
3
4
5

(Id.).
In arriving at his conclusion, the ALJ relied primarily on

6
7

the opinions of the State Agency physicians.

8

these

9

records and with the opinion of the consultative examiner, Dr. Yu.

opinions

to

be

consistent

with

(Id.).

the

The ALJ found

objective

treatment

10

(Id.).

The ALJ also gave substantial weight to Dr. Yu’s opinion.

11

(Id.).

The ALJ found that Plaintiff’s testimony regarding the

12

intensity, persistence, and limiting effect of his symptoms was

13

“not entirely credible.”

(AR 17).

14
At step four, the ALJ determined that Plaintiff is unable to

15
16

perform any past relevant work.

17

found

18

experience, and RFC, there are jobs that exist in significant

19

numbers in the national economy that Plaintiff can perform.

20

19).

that,

considering

(AR 18).

Plaintiff’s

21

age,

education,

work

(AR

VI.

22

At step five, the ALJ

STANDARD OF REVIEW

23
24

Under 42 U.S.C. § 405(g), a district court may review the

25

Commissioner’s decision to deny benefits.

“The court may set aside

26

the Commissioner’s decision when the ALJ’s findings are based on

27

legal error or are not supported by substantial evidence in the

28

record as a whole.”

Auckland v. Massanari, 257 F.3d 1033, 1035
15

1

(9th Cir. 2001) (citing Tackett, 180 F. 3d at 1097); Smolen v.

2

Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Fair v. Bowen,

3

885 F.2d 597, 601 (9th Cir. 1989)).

4
5

“Substantial evidence is more than a scintilla, but less than

6

a preponderance.”

7

Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)).

8

evidence which a reasonable person might accept as adequate to

9

support a conclusion.”

Reddick, 157 F.3d at 720 (citing Jamerson v.
It is “relevant

Id. (citing Jamerson, 112 F.3d at 1066;

10

Smolen, 80 F.3d at 1279). To determine whether substantial evidence

11

supports a finding, the court must “‘consider the record as a

12

whole, weighing both evidence that supports and evidence that

13

detracts from the [Commissioner’s] conclusion.’”

14

F.3d at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir.

15

1993)).

16

or reversing that conclusion, the court may not substitute its

17

judgment for that of the Commissioner. Reddick, 157 F.3d at 720-21

18

(citing Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453,

19

1457 (9th Cir. 1995)).

Auckland, 257

If the evidence can reasonably support either affirming

20
21

VII.

22

DISCUSSION

23
24

Plaintiff

challenges

the

ALJ’s

decision

on

two

grounds.

25

First, Plaintiff contends that the ALJ failed to properly evaluate

26

the

27

Complaint (“Pl. MSO”) at 3).

28

ALJ failed to properly evaluate his testimony.

medical

evidence.

(Memorandum

in

Support

of

Plaintiff’s

Second, Plaintiff contends that the

16

(Id. at 7).

1
2

The Court disagrees.

The record demonstrates that the ALJ

3

conducted a thorough and proper analysis of both the medical

4

evidence and Plaintiff’s testimony.

5

discussed below, the Court finds that the ALJ’s decision must be

6

AFFIRMED.

Accordingly, for the reasons

7
8

A. The ALJ Properly Assessed The Medical Evidence

9
10

Plaintiff argues that the ALJ erred in (1) giving substantial

11

weight to Dr. Yu’s opinion (Pl. MSO at 3-5); (2) denying Plaintiff

12

the opportunity to amend his subpoena request (Id. at 4-5); and

13

(3) rejecting Plaintiff’s obstructive sleep apnea as a severe

14

impairment.

(Id. at 5).

15
16

1. Dr. Warren Yu

17
18

Plaintiff contends that Dr. Yu’s opinion is “effectively, the

19

entire basis for the [ALJ’s] decision.” (Pl. MSO at 5).

20

contends that the ALJ erred in affording substantial weight to Dr.

21

Yu’s opinion.

22

Yu’s medical report is unreliable and “as such, is not substantial

23

evidence.”

(Id.).

Plaintiff

Specifically, Plaintiff argues that Dr.

(Id.).

24
25

As a threshold matter, the Court disagrees with Plaintiff’s

26

argument that Dr. Yu’s opinion is, “effectively, the entire basis

27

for the decision.” (Pl. MSO at 5).

28

detailed and thorough summary of all of the medical evidence
17

The ALJ’s decision contains a

1

documented in the record.

2

the ALJ balanced the evidence according to its reliability and

3

consistency with other evidence.

4

RFC assessment “primarily on the opinions of the State Agency

5

physicians who found the claimant capable of a reduced range of

6

medium work [].

7

that of the consultative examiner, Dr. Yu [], and the objective

8

treatment records.”

(AR 15-18).

Pursuant to this summary,

The ALJ stated that he based his

[He found] these opinions to be consistent with

(AR 15).

9
10

While the ALJ noted that he adopted the State Agency opinions

11

for the most part, he did not adopt their occasional pushing and

12

pulling

13

limitation to be more consistent with the longitudinal treatment

14

records.

15

took note of the fact that, by “May 24, 2012, [Plaintiff] displayed

16

full strength with impingement signs and good range of motion.”

17

(AR 16).

18

of 2013 of left shoulder pain, “he had full strength and good range

19

of motion on examination.”

limitations.

(Id.).

(AR

16).

Instead,

he

found

Dr.

Yu’s

Specifically, in reviewing the record, the ALJ

He noted that, though Plaintiff complained in September

(AR 16).

20

In his Reply Brief, Plaintiff argues that if “Dr. Yu’s opinion

21

were not ultimately determinant of the decision, there would have

22

been no need to get his answer about which of his conflicting

23

exertional limitations he intended.”

24

Rep.”) at 2).

25

proper determination, it is paramount that he evaluates the entire

26

record.

27

conflicts in the evidence so that he can appropriately consider

28

all evidence.

The Court disagrees.

(Plaintiff’s Reply (“Pl.

In order for an ALJ to make a

It is equally important for the ALJ to resolve any

18

1
2

To support his argument that Dr. Yu’s opinion is unreliable

3

and should not have been granted substantial weight, Plaintiff

4

references Dr. Yu’s incorrect comment that Plaintiff “last worked

5

as a construction laborer up until 1979.”

6

Plaintiff also points to the fact that Dr. Yu accidentally dated

7

his evaluation “November 1, 2013” instead of November 2014.

8

MSO at 3, AR 569).

9

that Dr. Yu stated “so you have pain in your back.

(Pl. MSO at 3, AR 570).

(Pl.

Plaintiff similarly refers to his testimony
I said, no,

10

it’s not my back, it’s my shoulders.”

11

also points to the discrepancy between Dr. Yu’s narrative report

12

and his MSS regarding how much Plaintiff could lift and carry.

13

(Pl. MSO at 4).

14

misinformation/errors from Dr. Yu.” (Id.).

(Pl. MSO at 3, AR 33).

He

Plaintiff calls these mistakes a “collection of

15
16

First,

regarding

Dr.

Yu’s

mistaken

identification

of

17

Plaintiff’s past employment, incorrect evaluation date, and his

18

initial misunderstanding about the location of Plaintiff’s pain,

19

such alleged mistakes are irrelevant to the substance of his

20

opinion.

21

minor errors rendered Dr. Yu’s entire exam as unreliable.

There is no support for Plaintiff’s assertion that these

22
23

Second,

the

ALJ

properly

considered

and

resolved

the

24

inconsistency in Dr. Yu’s report regarding lift/carry limitations.

25

(AR 16, 18).

26

conflicts in Dr. Yu’s opinion should be resolved in favor of the

27

checkbox limitations.

28

Yu to clarify the inconsistency regarding lift/carry limitations.

Plaintiff argued at the supplemental hearing that

(AR 29-30).

19

However, the ALJ contacted Dr.

1

(AR 251, 581).

2

that

3

twenty-five pounds frequently.”

4

resolved his opinion about Plaintiff’s functional limitations.

the

As the ALJ noted, “Dr. Yu clarified and confirmed

limitations

should

be

fifty

pounds

(AR 16).

occasionally

and

Thus, Dr. Yu properly

5
6

Therefore,

the

ALJ

provided

a

reasoned

and

thorough

7

explanation for affording substantial weight to Dr. Yu’s opinion.

8

He appropriately reconciled any inconsistencies in Dr. Yu’s opinion

9

and his analysis is well-supported by the record.

10
11

2. Subpoena Request

12
13

Plaintiff

argues

that,

based

on

the

“collection

of

14

misinformation/errors from Dr. Yu, and the dubious proposition that

15

he could remember his opinion from a brief examination seven weeks

16

prior, []counsel wrote to the ALJ requesting a supplemental hearing

17

and that Dr. Yu be subpoenaed to that hearing.”

18

On April 16, 2015, the ALJ held a supplemental hearing.

19

49).

20

Yu.

21

regulations requiring that he “state the important facts that the

22

witness is expected to prove, and indicate why these facts could

23

not be proven without issuing a subpoena.”

24

that the ALJ did not give him an opportunity to amend his subpoena.

25

(Pl. MSO at 4).

26

question Dr. Yu had the effect of denying Plaintiff basic due

27

process.”

(Pl. MSO at 4).
(AR 26-

However, the ALJ denied Plaintiff’s request to subpoena Dr.
(AR 178).

The ALJ stated that Plaintiff failed to adhere to

(Id.). Plaintiff argues

Plaintiff asserts that not having “a chance to

(Id.).

28
20

1

As the ALJ noted, a claimant requesting a subpoena must “state

2

the important facts that the witness or document is expected to

3

prove; and indicate why these facts could not be proven without

4

issuing a subpoena.” 20 C.F.R. §§ 404.950(d)(2), 416.1450(d)(2).

5

As an administrative proceeding, Social Security hearings are non-

6

adversarial and the Federal Rules of Evidence do not apply. Bayliss

7

v. Barnhart, 427 F.3d 1211, 1218 n. 4 (9th Cir. 2005).

8

is entitled to “such cross-examination as may be required for a

9

full and true disclosure of the facts.” See Solis v. Schweiker,

10

719 F.2d 301, 302 (9th Cir. 1983) (quoting 5 U.S.C. § 556(d)). The

11

ALJ has discretion to decide when cross-examination is warranted.

12

Copeland v. Bowen, 861 F.2d 536, 539 (9th Cir. 1988).

A claimant

13
14

Here, the ALJ denied Plaintiff's subpoena request because Dr.

15

Yu had already clarified the only relevant error in his evaluation.

16

Plaintiff failed to demonstrate any other substantial need for Dr.

17

Yu’s appearance.

18

fully reconciled, Plaintiff could not establish that Dr. Yu’s

19

testimony was either essential or unobtainable by other means.

20

Moreover, Plaintiff has not demonstrated that cross-examination of

21

Dr. Yu was “required for a full and true disclosure of the facts.”

22

Id.

23

unreliable because it is dubious that he “could remember his

24

opinion

25

speculation.

26

Plaintiff's request for a subpoena nor did the ALJ deny basic due

27

process to Plaintiff.

In other words, because Dr. Yu’s records had been

Plaintiff’s

from

a

suggestion

brief

that

examination

Dr.

seven

Yu’s

weeks

clarification

prior”

is

is

pure

For these reasons, the ALJ did not err in denying

28
21

1

3. Sleep Apnea

2
3

Plaintiff next argues that the ALJ erred in rejecting his

4

alleged “obstructive sleep apnea as a severe impairment.”

5

MSO at 5).

(Pl.

Specifically, Plaintiff argues that:

6
[t]he record provides a diagnosis of obstructive sleep
apnea. Plaintiff testified to needing to nap daily during
the day. He is not required to prove his claim beyond a
reasonable doubt.
It must be more probable than not.
People who are not tired do not generally take pointless
naps as a way of luxuriating in their retirement.
The
evidence establishes a basis for Plaintiff’s complaints of
tiredness, and the decision’s dismissing of that impairment
out of hand unjustifiably amputates a substantive aspect of
Plaintiff’s disability claim.

7
8
9
10
11
12
13
14

(Id. at 6).

15
The

16
17
18
19
20
21
22
23
24
25
26

ALJ

appropriately

did

not

err

determined

in

his

finding.

that

the

record

First,

fails

to

the

ALJ

establish

Plaintiff’s alleged sleep apnea causes a significant limitation in
his ability to perform basic work activities.
out,

“[a]lthough

the

[plaintiff]

testified

As the ALJ pointed
that

he

could

not

tolerate the CPAP titration, the record reflects that, at least at
one point, he tolerated it well.”

(AR 14, 512).

Moreover, the

ALJ appropriately determined that the evidence of record did not
provide “a direct link establishing that the [plaintiff’s] naps
are caused by sleep apnea or that they are even required.”
14).

27
28
22

(AR

1

Additionally, the ALJ concluded that the record contains

2

“little, if any, in the way of notations describing the [plaintiff]

3

as tired or fatigued.

4

follow-up treatment for sleep apnea.

5

the [plaintiff’s] doctor reported that the diagnostic portion of

6

the [plaintiff’s] sleep study indicated only mild obstructive sleep

7

apnea.”

The record also contains little, if any,
In fact, by August 28, 2013,

(Id.).

8
9

The ALJ reasonably concluded that Plaintiff’s alleged sleep

10

apnea was non-severe.

11

sleep apnea were reasonable, the Court should not disturb them.

12

See Morgan v. Comm'r of Social Sec. Admin., 169 F.3d 595, 599 (9th

13

Cir. 1999) (“Where the evidence is susceptible to more than one

14

rational interpretation, it is the ALJ's conclusion that must be

15

upheld.”).

Because the ALJ's conclusions regarding

16
17
18

B. The ALJ Provided Specific, Clear, And Convincing Reasons For
Rejecting Plaintiff’s Testimony

19
20

Plaintiff argues that the ALJ erred by rejecting Plaintiff’s

21

subjective testimony.

22

contends that the ALJ failed to provide clear and convincing

23

reasons for rejecting Plaintiff’s testimony regarding the severity

24

of his symptoms.

25

the

26

testimony.

ALJ

(Pl. MSO at 7).

(Id. at 8).

properly

evaluated

Specifically, Plaintiff

The Court disagrees and finds that
the

credibility

of

Plaintiff’s

27
28

When assessing a claimant’s credibility regarding subjective
23

1

pain or intensity of symptoms, the ALJ must engage in a two-step

2

analysis.

3

Initially, the ALJ must determine if there is medical evidence of

4

an impairment that could reasonably produce the symptoms alleged.

5

Id. (citation omitted).

6

evidence of malingering, the ALJ must provide specific, clear and

7

convincing reasons for rejecting the claimant’s testimony about

8

the symptom severity.

9

ALJ may consider the following:

Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012).

If such evidence exists, and there is no

Id. (citation omitted).

In so doing, the

10
11
12
13
14
15

[One,]
[the]
ordinary
techniques
of
credibility
evaluation, such as the claimant’s reputation for lying,
prior inconsistent statements concerning the symptoms,
and other testimony by the claimant that appears less
than candid; [two,] [the] unexplained or inadequately
explained failure to seek treatment or to follow a
prescribed course of treatment; and [three,] the
claimant’s daily activities.

16
17
18

Smolen, 80 F.3d at 1284 (brackets added); Tommasetti v. Astrue,
533 F.3d 1035, 1039 (9th Cir. 2008).

19
20
21
22
23
24
25
26
27
28

Further, the ALJ must make a credibility determination with
findings that are “sufficiently specific to permit the court to
conclude that the ALJ did not arbitrarily discredit [plaintiff’s]
testimony.”

Tommasetti, 533 F.3d at 1039 (citation omitted).

Although an ALJ’s interpretation of a claimant’s testimony may not
be the only reasonable one, if it is supported by substantial
evidence, “it is not [the court’s] role to second-guess it.”
Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (citing
Fair, 885 F.2d at 604).
24

1
2

Here, the ALJ stated that he found Plaintiff’s “medically

3

determinable impairments could reasonably be expected to cause the

4

alleged

5

intensity, persistence and limiting effects of these symptoms are

6

not entirely credible.”

7

for finding that Plaintiff's allegations are not fully credible.

symptoms;

however,

[his]

(AR 17).

statements

concerning

the

The ALJ cited several reasons

8
9

First,

objective

evidence

contradicted

Plaintiff’s

10

allegations.

11

after his motorcycle accident, a physician’s assistant (PA) opined

12

that

13

tolerated.”

14

work restrictions would be lifted at the end of June 2012, stating

15

“[a]t that time can return to work without restrictions or will

16

place him on permanent work restrictions.”

17

that “the only way to see if he can do his job duties is to actually

18

attempt to perform them.”

19

Plaintiff did not attempt performing his work duties.

20

Indeed, Plaintiff has not worked since August 2011.

21

ALJ also noted that the record does not contain a follow-up with

22

this medical source.

For example, in July of 2012, less than one year

Plaintiff

was

“ok

to

(AR 17, 476).

return

to

normal

activities

as

The PA also indicated that Plaintiff’s

(Id.).

(Id.).

The PA stated

However, the ALJ noted that
(AR 17).

(Id.).

The

(Id.).

23
24

Moreover,

the

ALJ

noted

that

“no

examining

or

reviewing

25

physician has rendered an opinion fully supporting the claimant’s

26

allegations.

27

than he claims.”

28

him to stop physical therapy and “not to do any exercise once they

In fact, several find him to be much more capable
(Id.).

Plaintiff reported that his doctors told

25

1

saw partial tears on the MRI.”

2

these statements were not corroborated by the record.

3

ALJ further stated that, during the April 2015 hearing, Plaintiff

4

referred to his mowing the lawn as exercise.

5

noted that this contradicts Plaintiff’s assertions that he was told

6

not to exercise.

(AR 18).

The ALJ determined that
(Id.).

(AR 18).

The

The ALJ

(Id.).

7
8
9

The ALJ also noted that Plaintiff managed his alleged pain
conservatively.

Conservative treatment can diminish a plaintiff’s

10

credibility regarding the severity of an impairment.

11

v. Astrue, 481 F.3d 742, 750—51 (9th Cir. 2007); see also Meanel

12

v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (Claimant's “claim

13

that she experienced pain approaching the highest level imaginable

14

was inconsistent with the ‘minimal, conservative treatment’ that

15

she received.”); Johnson v. Shalala, 60 F.3d 1428, 1434 (9th

16

Cir.1995) (ALJ properly concluded claimant's excess pain testimony

17

was not credible because, among other reasons, claimant's treating

18

physician prescribed only conservative treatment, “suggesting a

19

lower level of both pain and functional limitation”).

See Parra

20
21

Here, the ALJ stated that Plaintiff’s representative “asked

22

[Plaintiff] about pain and [he] responded that he was pretty much

23

managing the pain and was not takin[g] pain medications.”

24

The ALJ noted that, absent a November 2013 incident,

(AR 18).

25
26
27
28

there are no records describing exacerbations of shoulder
pain … even during the November 2013 incident only
conservative measures were recommended (despite the
descriptions of 10/10 paint) and a week later the symptoms
were largely resolved. Afterwards, there [were] hardly any
26

indications of treatment even though [Plaintiff] does have
ready access to care.

1
2
3

(Id.).

4

treatment, or lack of treatment, do not necessarily equate with

5

lack of a medical problem.

6

a patient to deal with medical impairments.”

7

While Plaintiff’s assertion may be correct, its application here

8

is misplaced.

9

allegations of disabling pain were inconsistent with his failure

In his Reply Brief, Plaintiff argues that “[c]onservative

There are multiple acceptable ways for
(Pl. Rep. at 4).

The ALJ appropriately determined that Plaintiff’s

10

to seek out medication or physical therapy.

11

determined that Plaintiff’s allegations conflicted with evidence

12

that his pain was easily managed with minimal care.

The ALJ also properly

13
14

The ALJ also noted that, during the hearings, Plaintiff moved

15

his arms easily with no outward manifestations of discomfort.

16

18).

17

Plaintiff stated in his Disability Report-Appeal that he is able

18

to care for himself, but is careful when reaching above and behind

19

his back.

20

the ALJ’s credibility determination.

(AR

Moreover, the ALJ took into consideration the fact that

(AR 18, 225).

These findings offer further support for

21
22

In sum, there are legally sufficient, record-based reasons

23

for the ALJ to have declined to credit Plaintiff’s subjective

24

statements

25

ultimate determination to reject Plaintiff’s subjective testimony

26

was not error.

in

their

entirety.

For

27
28
27

these

reasons,

the

ALJ’s

1

VIII.

2

CONCLUSION

3
4

Consistent with the foregoing, IT IS ORDERED that Judgment be

5

entered AFFIRMING the decision of the Commissioner.

6

the Court shall serve copies of this Order and the Judgment on

7

counsel for both parties.

The Clerk of

8
9

DATED:

June 14, 2017

10

/S/
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE

11
12
13
14

THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW, LEXIS OR
ANY OTHER LEGAL DATABASE.

15
16
17
18
19
20
21
22
23
24
25
26
27
28
28