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)

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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

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