Esequiel Escobar v. Carolyn W. Colvin

Filing 18

MEMORANDUM OPINION by Magistrate Judge Alka Sagar. The decision of the Commissioner is affirmed. (See document for complete details) (afe)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA-EASTERN DIVISION 11 12 ESEQUIEL ESCOBAR, 13 14 Plaintiff, v. 15 NANCY A. BERRYHILL,1 Acting Commissioner of Social 16 Security, 17 Defendant. 18 ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 16-0980-AS MEMORANDUM OPINION 19 PROCEEDINGS 20 21 On May 13, 2016, Plaintiff filed a Complaint seeking review of the 22 denial of his applications for Disability Insurance Benefits and 23 Supplemental Security Income. (Docket Entry No. 1). The parties have 24 consented to proceed before the undersigned United States Magistrate 25 Judge. (Docket Entry Nos. 11-12). On September 26, 2016, Defendant 26 27 28 filed an Answer along with the Administrative Record (“AR”). 1 (Docket Nancy A. Berryhill is now the Acting Commissioner of the Social Security Administration and is substituted in for Acting Commissioner Caroyln W. Colvin in this case. See 42 U.S.C. § 205(g). 1 1 Entry Nos. 15-16). On December 22, 2016, the parties filed a Joint 2 Stipulation (“Joint Stip.”), setting forth their respective positions 3 regarding Plaintiff’s claims. (Docket Entry No. 17). 4 5 6 The Court has taken this matter under submission without oral 7 argument. See C.D. Cal. L.R. 7-15; “Order Re: Procedures in Social 8 Security Case,” filed May 16, 2016 (Docket Entry No. 9). 9 10 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 11 12 On May 2, 2013, Plaintiff, formerly employed as an ice cream truck 13 driver, a golf course maintenance worker, and a cashier at a market 14 (see AR 33, 197, 202-07), filed applications for Disability Insurance 15 Benefits and Supplemental Security Income, alleging a disability since 16 April 2, 2013. (AR 174-78, 182-84). On October 28, 2014, the 17 18 Administrative Law Judge (“ALJ”), Joan Ho, heard testimony from 19 Plaintiff (who was represented by counsel) and vocational expert Kelly 20 Winn-Boaitey. (See AR 27-60). On December 23, 2014, the ALJ issued a 21 decision denying Plaintiff’s applications. (See AR 13-20). After 22 determining that Plaintiff had severe impairments –- “degenerative disc 23 disease of the thoracic spine and lumbar spine; lubago; and bilateral 24 shoulder acromial downsloping” (AR 15-16)2 --, the ALJ found that 25 26 27 28 2 The ALJ determined that Plaintiff’s depression was not a medically determinable impairment. 2 1 Plaintiff had the residual functional capacity (“RFC”)3 to perform the 2 following: lifting and/or carrying 20 pounds occasionally and 10 pounds 3 frquently; standing and/or walking for 6 hours in an 8-hour workday; 4 sitting for 6 hours in an 8-hour workday; and climbing, balancing, 5 6 stooping, kneeling, crouching, and crawling occasionally. (AR 16-20). 7 Finding that Plaintiff was capable of performing past relevant work as 8 a peddler as generally performed and as a cashier/checker as actually 9 and generally performed, the ALJ found that Plaintiff was not disabled 10 within the meaning of the Social Security Act. 11 12 (AR 20). Plaintiff requested that the Appeals Council review the ALJ’s 13 Decision. (See AR 9). The request was denied on April 8, 2016. (See AR 14 15 1-3). The ALJ’s Decision then became the final decision of the 16 Commissioner, allowing this Court to review the decision. See 42 U.S.C. 17 §§ 405(g), 1383(c). 18 19 PLAINTIFF’S CONTENTIONS 20 Plaintiff alleges that the ALJ failed to properly (1) reject the 21 22 opinion of Plaintiff’s treating physician, Dr. Akmakjian; and (2) pose 23 a complete hypothetical question to the vocational expert. 24 Stip. at 3-9, 13-16, 18). (See Joint 25 26 27 28 3 A Residual Functional Capacity is what a claimant can still do despite existing exertional and nonexertional limitations. See 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). . 3 1 DISCUSSION 2 After consideration of the record as a whole, the Court finds that 3 4 the Commissioner’s findings are supported by substantial evidence and 5 are free from material legal error.4 6 7 A. The ALJ Properly Rejected the Opinion of Plaintiff’s Treating 8 9 10 11 Physician, Jack Akmakjian, M.D. Plaintiff asserts that the ALJ failed to provide specific and legitimate reasons for rejecting the opinion of Plaintiff’s treating 12 13 14 physician, Dr. Akmakjian. asserts that the 15 Akmakjian’s opinion. ALJ (See Joint Stip. at 3-9, 13). provided valid reasons for Defendant rejecting Dr. (See Joint Stip. at 9-13). 16 17 18 Although a treating physician's opinion is generally afforded the greatest weight in disability cases, it is not binding on an ALJ with 19 respect to the existence of an impairment or the ultimate determination 20 21 of disability. Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 22 1195 (9th Cir. 2004); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 23 1989). The weight given a treating physician’s opinion depends on 24 whether it is supported by sufficient medical data and is consistent 25 with other evidence in the record. 26 27 28 4 20 C.F.R. § 404.1527(b)-(d), The harmless error rule applies to the review of administrative decisions regarding disability. See McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (an ALJ’s decision will not be reversed for errors that are harmless). 4 1 416.927(b)-(d). “Generally, a treating physician’s opinion carries more 2 weight than an examining physician’s, and an examining physician’s 3 opinion carries more weight than a reviewing physician’s.” 4 Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); see also Lester v. 5 6 Chater, 81 F.3d 821, 830 (9th Cir. 1995). 7 If a treating doctor’s opinion is not contradicted by another 8 9 doctor, the ALJ can reject the treating doctor’s opinion only for “clear 10 and convincing reasons.” Carmickle v. Commissioner, 533 F.3d 1155, 1164 11 (9th Cir. 2008); Lester v. Chater, supra. If the treating doctor’s 12 opinion is contradicted by another doctor, the ALJ must provide 13 “specific and legitimate reasons” for rejecting the treating doctor’s 14 15 opinion. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007l); Reddick v. 16 Chater, 157 F.3d 715, 725 (9th Cir. 1998); Lester v. Chater, supra. 17 18 Jack Akmakjian, M.D., a physician at Akmakjian Spine and General 19 Orthopaedics Center, treated Plaintiff from March 27, 2013 to March 26, 20 2014. (See AR 303-307, 310-17). Plaintiff was diagnosed with inter 21 alia lumbar spine degenerative disc disease, lumbar spine facet 22 23 24 arthropathy, lumbar spine buldge, thoracic spine degenerative disc disease, congenital stenosis, and bilateral shoulder inpingement. 5 25 AR 303-307, 310). (See In a Medical Opinion Re: Ability to Do Work-Related 26 Activities (Physical) form dated October 24, 2014, Dr. Akmakjian opined 27 that Plaintiff had the following functional limitations: can lift and 28 5 The records from Dr. Akmakjian are not very legible. 5 1 carry less than 10 pounds occasionally (no more than 1/3 of an 8-hour 2 day) and frequently (1/3 to 2/3 of an 8-hour day); can stand and walk 3 (with normal breaks) less than 2 hours during an 8-hour day; can sit 4 (with normal breaks) about 6 hours during an 8-hour day; can sit 30 5 6 minutes before changing position; can stand 30 minutes before changing 7 position; every 30 minutes must walk for 15 minutes; needs to shift at 8 will from sitting or standing/walking; no twisting, stooping (bending), 9 crouching, kneeling, climbing stairs and ladders; reaching (including 10 overhead) and pushing/pulling are affected by the impairment; must avoid 11 all exposure to extreme cold; and must avoid even moderate exposure to 12 extreme heat, wetness, humidity, noise, fumes, odors, dusts, gases, poor 13 ventilation, and hazards (machinery, heights); and on the average will 14 15 be absent from work more than 3 times a month. (AR 327-29). 16 17 After summarizing Dr. Akmakjian’s opinion (see AR 19), the ALJ 18 addressed it as follows: “I accord little weight to this opinion because 19 it is not consistent with the record as a whole, e.g., unremarkable 20 physical examinations and mild MRI/x-ray findings as discussed above. 21 Moreover, the opinion expressed is quite conclusory, providing very 22 23 24 little explanation of the evidence relied on in forming that opinion. Furthermore, it is inconsistent with the claimant’s testimony.” (Id.). 25 26 The ALJ properly discredited Dr. Akmajian’s opinion because it was 27 not supported by the objective medical evidence and was conclusory. See 28 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (An ALJ “need not 6 1 accept the opinion of any physician, including a treating physician, if 2 that opinion is brief, conclusory and inadequately supported by clinical 3 findings.”); Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) 4 (ALJ properly discounted treating physician’s opinion for being “so 5 6 extreme as to be implausible” and “not supported by any findings” where 7 there was “no indication in the record what the basis for these 8 restrictions might be”); Magallanes v. Bowen, 881 F.2d at 752 (ALJ’s 9 decision to reject the treating physician’s opinion due to a lack of 10 medical evidence was sufficiently “specific and legitimate” and based on 11 substantial evidence in the record). 12 13 Although Plaintiff contends that Dr. Akmakjian’s treatment records 14 15 support Dr. Akmajian’s opinion (see Joint Stip. at 7-8, citing AR 307 16 [March 22, 2013, reported increased pain in the low back, positive 17 straight leg raise test on the left6], AR 306 [May 22, 2013, tender 18 lumbar spine, positive straight leg raise on the left, decreased 19 sensation on the left at S1], AR 305 [July 24, 2013, reported pain level 20 on average 5 to 6 out of 10 (as high as 8-9 out of 10), positive 21 straight leg raise on the left, notation that Plaintiff still cannot 22 23 24 work for 3 months], AR 304 [October 29, 2013, reported persistence of lower back pain, positive straight leg raise on the left], AR 303 25 6 The “straight leg raise test” is when a medical practitioner 26 raises a patient’s leg upward while the patient is lying down. The test stretches the nerve root. The Merck Manual of Diagnosis and Therapy, 27 1490 (17th Ed. 1999). “A positive Lasegue or straight leg raising test (pain on straight leg raising) produces pain in the sciatic nerve and is 28 significant for compression of the L4-L5 or L5-S1 spinal nerve roots.” Primero v. Astrue, 2013 WL 394883, *2 at n.6 (C.D. Cal. Jan. 31, 2013)(citation omitted). 7 1 [December 11, 2013, reported pain worse in cold weather, reported 2 inability to perform simple tasks at home, positive straight leg raise 3 on the left, notation that Plaintiff still cannot work for 6 months]), 4 the ALJ found that the “unremarkable physical examinations and mild 5 6 MRI/x-ray findings” in the overall record, as discussed below, do not 7 support the restrictive limitations to which Dr. Akmajian opined. 8 9 X-rays were taken on May 29, 2013: (1) Right shoulder. The 10 findings were: “There is no significant change. The osseous structures 11 and joint spaces are intact. No fractures or arthritic changes are 12 observed. However, there now appears to be slightly increased acromial 13 downsloping. This could represent a projectional artifact, however 14 15 early rotator cuff entrapment cannot be excluded.” Plaintiff was 16 diagnosed with “[n]egative right shoulder but with mild acromial 17 downsloping.” (AR 285); (2) Thoracic spine. The findings were: “There 18 is minimal scoliosis. Mild degenerative changes are present with slight 19 disc disc space narrowing and early osteophyte formation. No fracture 20 or sublaxations are observed.” Plaintiff was diagnosed with “[n]egative 21 thoracic spine with minimal degenerative changes.” (AR 286); (3) 22 23 24 Cervical spine. The findings were: “There is mild scoliosis. vertebral bodies and intervertebral space are intact. The The obliques 25 views reveal the nerual formaina to be patent.” Plaintiff was diagnosed 26 with “[n]egative cervical spine.” (AR 287); and (4) Left shoulder. The 27 findings were: “The osseous structures and joint spaces are intact. No 28 fractures or arthritic changes are observed. 8 Again, there is mild 1 acromial downsloping which can result in rotator cuff entrapment.” 2 Plaintifff was diagnosed with “[n]egative left shoulder with acromial 3 downsloping. (AR 288). 4 5 6 On October 10, 2013, Vicente Bernarbe, D.O., prepared a report of 7 his orthopedic consultation with Plaintiff. (See AR 267-71). An 8 orthopedic examination revealed inter alia the following: (1) Station 9 and gait: “The gait was normal without ataxia or antalgia. The claimant 10 was able to toe and heel week. He did not use any assistive device to 11 ambulate. There were normal swing and stance phases.” (AR 268); (2) 12 Cervical spine: “The examination of the cervical spine revealed normal 13 attitude and posture of the head. There was no significant tenderness 14 15 to palpation. There was no visible or palpable spasm appreciated. 16 Range of motion was full and painless.” (Id.).; (3) Thoracic spine: 17 “The inspection of the thoracic spine was unrevealing. There was normal 18 kyphosis. Palpation elicited no tenderness.” (AR 269); (4) Lumbar 19 spine: “Observation reveals no abnormal curvature, masses, scars or 20 scoliosis. The pelvis was level. He was tender at the lumbosacral 21 region. There was mild paravertebral muscle spasm on the left. Sciatic 22 23 24 notches and gluteal muscles were not tender. Flexion was 40 degrees, extension 20 degree, side bending 20 degrees to the left and right and 25 rotation 45 degress to left.” (Id.). Dr. Barnarbe also noted: 26 “Positive straight leg raising on the left leg from a supine position at 27 45 degrees and from a seated position at 60 degress. 28 9 He had positive 1 Lasegue’s and Faber’s manuever on the left leg.”7 (Id.).; (5) Shoulders: 2 “The inspection of the left shoulder revealed no significant tenderness 3 to palpation. 4 Range of motion was full and painless. There was negative impingement sign and a negative cross arm abduction test. 5 There was no instability in the shoulder. The right shoulder had the 7 same range of motion as the left shoulder. There was a negative cross 6 8 arm adduction test and a negative impingement sign There was no 9 instability of the right shoulder.” (Id.).; (6) Wrists: “The inspection 10 revealed normal alignment and contour. There was no tenderness on 11 palpation. Range of motion was full and painless in all planes.” 12 (Id.).; (7) Hands: “The inspection revealed no significant deformities. 13 There was no atrophy of the intrinsic muscles. There was no tenderness. 14 15 The basic hand 16 manipulations. functions were well preserved in fine and gross The claimant was able to make full fists brining the 17 tips of the fingers to mid palmar crease. 18 the thumbs were full. Abduction and adduction of Range of the motion of the fingers was full and 19 painless.” (Id.).; (8) Hips: “The inspection was unrevealing. There was 20 no tenderness on palpation. Range of motion was full and painless.” 21 (Id.).; and (9) Knees: “The inspection was unrevealing. There was 22 23 24 normal alignment and contour. There was no tenderness on palpation. Range of motion was full and painless.” (Id.). A neurological 25 examination revealed gross intact motor strength in the upper and lower 26 extremities, well-preserved sensation in the upper and lower 27 7 “‘Fabere’ stands for flexion, abduction, external rotation and 28 extension, and a positive Fabere sign may indicate a hip joint disorder.” Primero v. Astrue, 2013 WL 394883, *4 at n.7. 10 1 extremities, and physiologic reflexes. (AR 270). An X-ray of the 2 lumbar spine showed the following: “[S]traightening of the lumbar 3 lordosis. 4 The intervertebral disc spaces are well preserved. no compression fracture or dislocation. There is The anterior and posterior 5 6 elements are intact.” (Id.). An X-ray of the left shoulder showed “no 7 acute fracture of dislocation” and unremarkable soft tissues. (Id.). 8 9 A January 27, 2014 MRI of Plaintiff’s left shoulder (ordered by Dr. 10 Akmakjian) revealed the following: “There is mild supraspinatus 11 tendinosis with no rotator cuff tear[.] There is no infraspinatus or 12 subscapularis tendon abnormality[.] [¶] There are mild acromiclavicular 13 joint degenerative changes with small inferior spur[.] The acromion is 14 15 type I with low risk of impingement[.] There are no areas of abnormal 16 signal involving the humeral head or the body glenoid. [¶] There is a 17 tear of the superior labrum or attachment of the tendon for long head of 18 biceps. There is no anterior or posterior labral rear. 19 soft tissue masses.” 20 21 There are no (AR 314). A January 27, 2014 MRI of Plaintiff’s right shoulder (ordered by 22 23 24 Dr. Akmakjian) revealed the following: “There is mild tendinosis of the supraspinatus tendon. There is tiny focus of high signal on T2 weighted 25 images within the supraspinatus tendon consistent with small focus of 26 partial tear[.] No 27 infraspinatus subscapularis or full-thickness tear tendon is tear. 28 acromioclavicular joint degenerative changes[.] 11 seen. [¶] There There are is no mild Acromion has smooth 1 undersurface and is type I with low risk of impingement. There are no 2 areas of abnormal signal involving the humeral head or the bony 3 glenoid[.] [¶] There is no tear of the superior labrum or attachment of 4 the tendon for long head of biceps. There is probable tear of the 5 6 anterior labrum. This can be better evaluated with MR arthrogram. 7 posterior or superior labral tear is seen. No There are no soft tissue 8 masses[.]” (AR 315). 9 10 A February 18, 2014 MRI of Plaintiff’s thoracic spine (ordered by 11 Dr. Akmakjian revealed the following: “There is no appreciable intrinsic 12 lesion of the thoracic spinal cord. There is no developmental spinal 13 stenosis, extramedullary/intradural mass, or bone marrow edema. Heights 14 15 of the thoracic vertebral bodies are well maintained. [¶] . . . [¶] T1-2 16 to T5-6: There is no disc protrusion, central stenosis, or cord 17 compression. [¶] T6-7: There is mild right central stenosis with 18 borderline compression of the right ventral cord due to approximately 33 19 mm right central protrusion of disc. There is mild intervertebral disc 20 space narrowing. [¶] T7-8: There is mild central stenosis with 21 borderline compression of the ventral cord due to approximately 3 mm 22 23 24 central posterior protrusion of dis. There is mild interverterbral disc space narrowing. [¶] There is mild central stenosis without cord 25 compression due to approximately 2-3 mm posterior protrusion of disc. 26 There is mild interverbral disc space narrowing. [¶] T9-10 to T12-L1: 27 There is no disc protrusion, central stenosis, or cord compression.” 28 (AR 312-13). 12 1 The ALJ also properly discredited Dr. Amakjian’s opinion because it 2 was conclusory and did not explain what evidence was being relied on. 3 See Thomas v. Barnhart, supra; Holohan v. Massanari, supra (“[T]he 4 regulations give more weight to opinions that are explained than to 5 6 those that are not.”); Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 7 1996)(an ALJ may “permissibly reject[] . . . check-off reports that [do] 8 not contain any explanation of the bases of their conclusions.”). In 9 his Opinion report dated October 24, 2014 (almost 7 months after last 10 treating Plaintiff), Dr. Amakjian wrote that the medical findings 11 supporting the limitations on Plaintiff’s lifting/carrying, 12 standing/walking, and sitting were “DME, X-Rays” and that the medical 13 findings supporting the affected physical functions (i.e., reaching 14 15 (including overhead), pushing/pulling) were 16 (AR 328). “X-Rays, Physical Exam.” However, Dr. Amakjian’s notations failed to state with 17 sufficient particularity what evidence supported his opinion. 18 19 Moreover, the ALJ properly discredited Dr. Amakjian’s opinion 20 because it was inconsistent with Plaintiff’s testimony regarding his 21 functional limitations. See Hensely v. Colvin, 600 Fed.Appx. 526, 527 22 23 24 (9th Cir. 2005)(the ALJ provided a specific and legitimate reason for giving little weight to a psychologisist’s opinions based, in part, on 25 the finding that the psychologist’s opinions were inconsistent with the 26 claimant’s reported daily activities); Myers v. Barnhart, 2006 WL 27 1663848, *6 n.7 (C.D. Cal. June 6, 2006)(“[A] treating physician’s 28 assessment of a claimant’s restrictions may be rejected to the extent it 13 1 ‘appear[s] to be inconsistent with the level of activity’ the claimant 2 maintains, or contradicts Plaintiff’s testimony.”)(internal citation 3 omitted). Plaintiff testified that he was able to regularly (5 or 6 4 days a week) help his wife with her ice cream business –- buying the 5 merchandise (ice cream, candies, chips, sodas [2 24-packs every other 6 7 8 week]), lifting the merchandise (he can lift more than a 24-pack of soda), and helping to load the merchandise into a van. 9 see also AR 205). (See AR 32-34; This testimony was inconsistent with the functional 10 limitations set forth in Dr. Amakjian’s opinion report. 11 12 B. 13 The ALJ Posed Complete Hypothetical Questions to the Vocational Expert 14 15 16 Plaintiff asserts that the ALJ failed to include in the 17 hypothetical questions to the vocational expert, and therefore failed to 18 take into account, any limitations regarding Plaintiff’s abilities to 19 reach, handle, and finger, based on Plaintiff’s severe impairment of 20 bilateral shoulder acromial downsloping.8 (See Joint Stip. at 14-16, 21 18). Plaintiff points out that the ALJ found that bilateral shoulder 22 23 24 acromial downsloping was a severe impairment (AR 15), but did not include any limitations about Plaintiff’s abilitiies to reach, handle, 25 and finger in her hypothetical questions to the vocational expert (see 26 AR 56-58) or in her RFC determination (see AR 16-20). 27 8 The acromion is the outer end of the spine of the scapula that the outer angle of the shoulder. See 28 f o r m s 14 1 Defendant asserts that the ALJ’s determination about Plaintiff’s 2 RFC was adequate, since “[t]he mild objective findings in Plaintiff’s 3 medical record do not support such limitations.” 4 16-17). (See Joint Stip. at 5 6 7 8 A hypothetical question to a vocational expert must accurately reflect a claimant’s limitations. See Robbins v. Social Sec. Admin., 9 466 F.3d 880, 886 (9th Cir. 2006)(“. . . [I]n hypotheticals posed to a 10 vocational expert, the ALJ must only include those limitations supported 11 by substantial evidence”); Thomas v. Barnhart, 278 F.3d 947, 956 (9th 12 Cir. 2002)(“In order for the testimony of a VE to be considered 13 reliable, the hypothetical posed must include ‘all of the claimant’s 14 functional limitations, both physical and mental’ supported by the 15 16 17 record.”)(citations omitted); Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)(“Hypothetical questions posed to the vocational expert must 18 set out all the limitations and restrictions of the particular claimant 19 . . . .”). Where a hypothetical question fails to “set out all of the 20 claimant’s impairments,” the vocational expert’s answers to the question 21 cannot constitute substantial evidence to support the ALJ’s decision. 22 See DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991); Gamer v. 23 Secretary, 815 F.2d 1275, 1280 (9th Cir. 1987); Gallant v. Heckler, 753 24 25 F.2d 1450, 1456 (9th Cir. 1984). 26 27 28 15 To the extent that Petitioner is repeating his contention that the 1 2 ALJ did not properly reject Dr. Akmakjian’s opinion, the Court has 3 already rejected that contention. The Court notes that Dr. Akmakjian 4 did not even opine that Plaintiff had any functional limitations in the 5 areas of handling (gross manipulation) and fingering (fine 6 7 manipulationl) (AR 328). 8 Here, the evidence in the record does not reflect that Plaintiff 9 10 was limited in his abilities to reach, handle, and finger based on his 11 bilateral shoulder acromial downsloping impairment. The May 29, 2013 X12 rays of Plaintiff’s right and left shoulders showed “mild acromial 13 downsloping.” (AR 286, 288). The October 2013 orthopedic examination 14 showed that Plaintiff had a full and painless range of motion, no 15 16 17 impingement and no instability in both shoulders; a full and painless range of motion in the wrists; a full and painless range of motion in 18 the hands; and good grip strenghth. (AR 269-70). The January 1, 2014 19 MRIs showed of Plaintiff’s left shoulder and right only “mild 20 acromiclavicular joint degenerative changes” and the acromions are “type 21 1 with low risk of impingement.” (AR 314-15). Dr. Akmajian’s records 22 do not appear to contain any notations regarding hand, wrist or finger 23 pain, testing, or treatment. (See AR 303-07, 310-11). Other than Dr. 24 25 Akmajian’s conclusory opinion that Plaintiff’s reaching (including 26 overhead) was affected by his impairment (AR 328), there are no 27 opinions from any medical providers that Plaintiff was limited in his 28 abilities to reach, handle and finger. (See AR 67-68 [Keith Wahl, M.D., 16 1 reviewing physician], 88-90 [F. Kalmar, M.D., reviewing physician], 271 2 [Dr. Bernarbe, consultative examining physician]). Plaintiff has failed 3 to cite to any evidence in the record showing that his bilateral 4 shoulder acromial downsloping limited his abilities to reach, handle and 5 finger. See Tacket v. Apfel, 180 F.3d 1094, 109 (9th Cir. 1999)(“The 6 7 burden of proof is on the claimant as to steps one to four.”). 8 9 Therefore, the ALJ did not err in not including in her hypothetical 10 questions to the vocational expert any limitations about Plaintiff’s 11 abilities to reach, handle and finger, or in not including any 12 limitations about Plaintiff’s abilities to reach, handle and finger in 13 her RFC determination. 14 15 ORDER 16 17 18 19 For the foregoing reasons, the decision of the Commissioner is affirmed. 20 21 LET JUDGMENT BE ENTERED ACCORDINGLY. 22 23 DATED: May 5, 2017 24 25 26 /s/ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 27 28 17

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