Walter L. Nead, Plaintiff-appellant, v. Donna E. Shalala, Secretary of Health and Human Services,defendant-appellee, 89 F.3d 846 (9th Cir. 1996)

MEMORANDUM^** 

Walter L. Nead appeals the district court's grant of summary judgment in favor of the Secretary of Health and Human Services. The Secretary denied Nead's application for disability insurance benefits and supplemental security income benefits under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-33, 1381-1383(c). Nead argues that: 1) substantial evidence does not support the Secretary's finding that Nead is not disabled, and 2) the administrative law judge erred by denying Nead's request for the issuance of subpoenas.

We AFFIRM.

"To determine whether substantial evidence exists we look at the record as a whole, considering both evidence that supports and undermines the ALJ's findings." Orteza v. Shalala, 50 F.3d 748, 749 (9th Cir. 1995). If the evidence is "susceptible of more than one rational interpretation, the decision of the ALJ must be upheld." Id. Evidence in the record supports a finding that Nead was not disabled; he has had no significant treatment nor taken any prescription medication for his back over the past eight years. It is within the factfinder's province to resolve conflicting medical opinions and here the administrative law judge did so. Substantial evidence supports the decision.

Nead argues that the ALJ erred by failing to issue a subpoena for Dr. Peacock, an examining physician, to appear at his hearing. The ALJ has the discretion to subpoena a witness to appear and testify at the hearing. 20 C.F.R. §§ 404.950 & 416.1450. Dr. Peacock had provided a full detailed report and no purpose would be served by further testimony from him. The ALJ did not abuse its discretion.

The grant of summary judgment is AFFIRMED.