Craig William Aubuchon v. Michael J Astrue, No. 2:2011cv09619 - Document 17 (C.D. Cal. 2012)
Court Description: MEMORANDUM AND OPINION by Magistrate Judge Victor B. Kenton re: The decision of the ALJ as delineated in this Order will be affirmed. The Complaint will be dismissed with prejudice. (rh)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 CRAIG WILLIAM AUBUCHON, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 11-09619-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for 20 disability benefits. 21 consented that the case may be handled by the Magistrate Judge. 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the record before 24 the Commissioner. 25 ( JS ), and the Commissioner has filed the certified Administrative 26 Record ( AR ). Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the Joint Stipulation 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge ( ALJ ) properly 1 2 rejected the treating physician s opinion; 2. Whether the ALJ properly articulated Plaintiff s residual 3 4 5 functional capacity; and 3. Whether the ALJ properly considered Plaintiff s testimony. (JS at 4.) 6 7 This Memorandum Opinion will constitute the Court s findings of 8 fact and conclusions of law. After reviewing the matter, the Court 9 concludes that the decision of the Commissioner must be affirmed. 10 11 I 12 THE ALJ PROPERLY DISCOUNTED THE OPINION OF DR. PULIDO 13 In his Decision (AR 20-25), the ALJ assessed Plaintiff with a 14 Residual Functional Capacity ( RFC ) to perform the full range of 15 light work. (AR 23.) 16 the medical evidence in the record, giving little weight to the 17 opinion of treating physician Dr. Pulido. (AR 24.) 18 that this was error. In making his determination, the ALJ evaluated Plaintiff asserts 19 Although Plaintiff disputes any contention that Dr. Pulido is not 20 his treating physician, this does not appear to be a real issue in 21 this case, as the Commissioner does not contend to the contrary. What 22 is contested, rather, is the extent of treatment, and the type of 23 treatment that Dr. Pulido provided. Plaintiff claims that he has been 24 treated by Dr. Pulido for 12 years, and sees him at least every other 25 month. (AR 55-56.) 26 the record does not contain documentation reflecting such a frequency 27 of treatment. 28 sources, must be considered a treating physician, the absence of a That would be approximately 70 visits; however, Thus, while Dr. Pulido, in the hierarchy of medical 2 1 longitudinal treatment record is relevant because the records which 2 are included in the file (AR 221-223; 281-295) are essentially 3 conclusory, check the box forms, which do not reflect any underlying 4 objective testing, laboratory results, or the like. As such, they are 5 entitled to less credibility than if they had such support. 6 Social Security Ruling ( SSR ) 96-2p; Crane v. Shalala, 76 F.3d 251, 7 253 (9th Cir. 1996), citing Murray v. Heckler, 722 F.2d 499, 501 (9th 8 Cir. 1983). 9 1989). See See also Magallanes v. Bowen, 881 F.2d 749, 751 (9th Cir. 10 Moreover, the ALJ relied upon opinions of consultative examiners 11 ( CE ) whose opinions were rendered after doing objective testing 12 (see, e.g., internal medicine evaluation of Dr. Sicarz at AR 224-228, 13 referenced in ALJ Decision). 14 examination indicated that Plaintiff at most had muscle spasm in his 15 back (AR 227), a normal gait, and the straight leg raising test was 16 negative. (AR 226-227.) The testing performed during this 2009 17 Moreover, the ALJ was entitled to and did rely upon the opinion 18 of the medical expert ( ME ) who had reviewed all of the medical 19 records. (AR 24, 306, 309-314.) 20 to the functional assessment rendered by Dr. Pulido. 21 task to evaluate competing opinions and the evidence upon which they 22 are based, and that is exactly what occurred in this case. 23 finds no reason to disturb the ALJ s conclusions, and thus, rejects 24 Plaintiff s first issue. All of these opinions were contrary It is the ALJ s The Court 25 26 II 27 THE ALJ PROPERLY DETERMINED PLAINTIFF S RESIDUAL FUNCTIONAL CAPACITY 28 Plaintiff argues in his second issue that although the ALJ found 3 1 that his severe impairments include urinary incontinence (AR 22), any 2 limitations on Plaintiff s RFC due to this impairment were not 3 factored into the ALJ s RFC, which allowed that he could perform the 4 full range of light work. (AR 23.) 5 There is no direct correlation in Social Security law between the 6 existence of a severe impairment at Step Two of the sequential 7 evaluation process, and the inclusion of functional limitations based 8 on all severe impairments at Step Four. 9 simply did not meet his burden of establishing that there were any 10 functional effects from his incontinence, vis-a-vis his ability to do 11 work. 12 specific limitations due to incontinence. 13 record indicates that Plaintiff did continue to perform part-time or 14 sporadic work in the construction industry after his 2003 accident. 15 (AR 55-56, 62, 127-129, 130-137, 238.) 16 17 In this case, Plaintiff Even his treating physician, Dr. Pulido, did not assess any Moreover, evidence in the For the foregoing reasons, the Court does not find merit in Plaintiff s second issue. 18 19 III 20 THE ALJ PROPERLY ASSESSED PLAINTIFF S TESTIMONY 21 In his Decision, the ALJ acknowledged Plaintiff s allegation that 22 he 23 incontinence. (AR 23.) 24 claims. 25 demonstrates an articulation of legally sufficient reasons to reject 26 Plaintiff s testimony. See Andrews v. Shalala, 53 F.3d 1035, 1043 (9th 27 Cir. 1995); Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). 28 is unable to perform any work because of severe pain and The ALJ provided limited credibility to these The issue for the Court is whether the ALJ s decision Plaintiff cites Dr. Pulido s statement that his continuation of 4 1 work activities after his 2003 accident reflected a valiant but 2 ultimately unsuccessful attempt to continue employment. 3 is that Plaintiff did continue to work, although in an admittedly 4 sporadic fashion, at a very demanding physical occupation, after his 5 accident. 6 evaluation process, did not find that Plaintiff was able to perform 7 the demands of his prior employment, but instead, reduced his RFC to 8 an ability to perform light work. But the fact Despite that, the ALJ, at Step Four of the sequential 9 As a proper credibility assessment factor, the ALJ also noted 10 that despite Plaintiff s complaints of extreme disabling pain, he did 11 not 12 treating 13 specialist, and there are no apparent records such as x-rays or MRIs 14 for that entire period of time, although Plaintiff was able to pursue 15 treatment. 16 disabling pain is a proper credibility factor. 17 Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 18 claim that he could not afford additional treatment, and should not be 19 faulted for not seeking or obtaining more comprehensive treatment for 20 his severe pain, but this does not appear to be a very credible 21 assertion in view of the fact that Plaintiff did have a treating 22 doctor for what he claims is a continuous period of 11 years, but 23 simply never got referred out for additional treatment. 24 receive In significant physician of treatment, 11 years including never the referred fact him to that his a back This lack of objective evidence in the face of allegedly addition to the foregoing, the ALJ See Rollins v. Plaintiff makes the did consider some 25 contradictions between Plaintiff s subjective claims and the objective 26 medical evidence as a credibility factor. 27 the sole factor, but the clinical findings, which the Court has 28 already referenced in this decision, are not consistent with a level 5 Of course, this cannot be 1 2 of extreme pain causing disability. Further, Plaintiff s daily living activities were not as 3 restricted as Plaintiff claimed. (See AR at 24, 56-57, 62, 127-129, 4 130-137, 238, 306.) 5 Taking these together, the Court concludes that the ALJ did 6 articulate a sufficient number of reasons which are supported by the 7 record to diminish Plaintiff s credibility as to his subjective 8 limitations. 9 credibility analysis which the ALJ performed and articulated in his Thus, the Court 10 Decision. 11 cannot find reason to fault the third issue does not have merit. 12 13 14 For that reason, the Court must conclude that Plaintiff s The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 15 16 17 DATED: August 22, 2012 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 6
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