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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA-EASTERN DIVISION

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12 ESEQUIEL ESCOBAR,
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14

Plaintiff,
v.

15 NANCY A. BERRYHILL,1 Acting
Commissioner of Social

16 Security,
17

Defendant.

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Case No. ED CV 16-0980-AS
MEMORANDUM OPINION

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PROCEEDINGS

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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

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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).

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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

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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

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April 2, 2013.

(AR 174-78, 182-84).

On October 28, 2014, the

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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

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The ALJ determined that Plaintiff’s depression was not a
medically determinable impairment.
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1 Plaintiff had the residual functional capacity (“RFC”)3 to perform the
2 following: lifting and/or carrying 20 pounds occasionally and 10 pounds
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frquently; standing and/or walking for 6 hours in an 8-hour workday;

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sitting for 6 hours in an 8-hour workday; and climbing, balancing,

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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.
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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

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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).
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19

PLAINTIFF’S CONTENTIONS

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Plaintiff alleges that the ALJ failed to properly (1) reject the

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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

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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).
.
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1

DISCUSSION

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After consideration of the record as a whole, the Court finds that

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4 the Commissioner’s findings are supported by substantial evidence and
5 are free from material legal error.4
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7

A.

The ALJ Properly Rejected the Opinion of Plaintiff’s Treating

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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

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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).

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Although a treating physician's opinion is generally afforded the
greatest weight in disability cases, it is not binding on an ALJ with

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respect to the existence of an impairment or the ultimate determination

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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.
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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).
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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.”

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Holohan v.

Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); see also Lester v.

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Chater, 81 F.3d 821, 830 (9th Cir. 1995).

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If a treating doctor’s opinion is not contradicted by another

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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

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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

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arthropathy, lumbar spine buldge, thoracic spine degenerative disc
disease, congenital stenosis, and bilateral shoulder inpingement.

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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
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The records from Dr. Akmakjian are not very legible.
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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
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(with normal breaks) less than 2 hours during an 8-hour day; can sit

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(with normal breaks) about 6 hours during an 8-hour day; can sit 30

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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
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extreme heat, wetness, humidity, noise, fumes, odors, dusts, gases, poor

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ventilation, and hazards (machinery, heights); and on the average will

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be absent from work more than 3 times a month.

(AR 327-29).

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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.
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Moreover, the opinion expressed is quite conclusory, providing very

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little explanation of the evidence relied on in forming that opinion.
Furthermore, it is inconsistent with the claimant’s testimony.” (Id.).

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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
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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)

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(ALJ properly discounted treating physician’s opinion for being “so

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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

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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
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straight leg raise on the left, notation that Plaintiff still cannot

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work for 3 months], AR 304 [October 29, 2013, reported persistence of
lower back pain, positive straight leg raise on the left], AR 303

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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]),

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the ALJ found that the “unremarkable physical examinations and mild

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MRI/x-ray findings” in the overall record, as discussed below, do not

7 support the restrictive limitations to which Dr. Akmajian opined.
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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
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observed.

However, there now appears to be slightly increased acromial

13
downsloping.

This could represent a projectional artifact, however

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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
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thoracic spine with minimal degenerative changes.”

(AR 286); (3)

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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).

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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

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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
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region. There was mild paravertebral muscle spasm on the left. Sciatic

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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.

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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

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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.).

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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
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subscapularis tendon abnormality[.] [¶] There are mild acromiclavicular

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joint degenerative changes with small inferior spur[.] The acromion is

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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

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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

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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

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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
www.merriam-webster.com/medical/acromion.

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

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burden of proof is on the claimant as to steps one to four.”).

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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.
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ORDER

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For the foregoing reasons, the decision of the Commissioner is
affirmed.

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATED: May 5, 2017

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/s/
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

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