Nasaret Asesyan v. Michael J Astrue, No. 2:2012cv03750 - Document 17 (C.D. Cal. 2013)
Court Description: MEMORANDUM AND OPINION by Magistrate Judge Victor B. Kenton re: The decisionof the ALJ 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 NASARET ASESYAN, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 12-03750-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 issue: 28 1. Whether the Administrative Law Judge S ( ALJ ) failure to 1 impose 2 substantial evidence. 3 any manipulative limitations is supported by (JS at 3.) 4 5 This Memorandum Opinion will constitute the Court s findings of 6 fact and conclusions of law. After reviewing the matter, the Court 7 concludes that the decision of the Commissioner must be affirmed. 8 9 I 10 THE ALJ S RESIDUAL FUNCTIONAL CAPACITY DETERMINATION 11 IS SUPPORTED BY SUBSTANTIAL EVIDENCE 12 Plaintiff asserts that the ALJ erred by failing to impose any 13 manipulative limitations in determining 14 capacity ( RFC ). 15 his residual functional disagrees and affirms the Decision. For the reasons to be set forth, the Court 16 An administrative hearing was held before ALJ Hesse, at which 17 Plaintiff appeared and testified, and was represented by the same 18 attorney who is representing him in this litigation. 19 also taken from a vocational expert ( VE ), and a medical expert 20 ( ME ). (AR 33-63.) 21 22 Testimony was Following the hearing, an unfavorable Decision was issued. (AR 12-20.) 23 The ALJ followed the familiar five step procedure (see AR at 13- 24 14). As such, she determined that Plaintiff s severe impairments at 25 Step Two are diabetes mellitus with peripheral neuropathy, coronary 26 artery disease and disorder of the lumbar spine. (AR 14.) The ALJ 27 noted medical 28 conditions, but she determined that they do not rise to the level of that Plaintiff has alleged 2 numerous additional 1 a severe impairment. These are summarized at AR 15, and include 2 Plaintiff s allegation that he is disabled due to numbness in his 3 fingers, which was first reported on the initial disability report of 4 June 4, 2008. (AR 15, 151.) 5 following portion of her Decision: The ALJ remarked upon this issue in the 6 However, during his physical consultative examination on 7 July 28, 2008, [Plaintiff] did not complain of numbness in 8 his fingers and he exhibited a normal grip and finger 9 approximation with sensory examination revealing grossly 10 intact and equal bilaterally sensation. (Exhibit 9F/4) 11 Further, an upper extremity neuro-conduction study conducted 12 in December 2009 showed normal results specifically with the 13 sensory 14 degeneration. (Exhibit 15F/4) 15 other above referenced alleged impairments, [Plaintiff] has 16 not sought specific treatment for the alleged numbness in 17 his fingers and as such the undersigned finds that this 18 condition is not severe based upon the conclusions assessed 19 in his 2008 physical consultative examination, the objective 20 medical evidence and the lack of any treatment history. 21 nerve study showing no evidence of axonal Again as with [Plaintiff s] (AR 15-16.) 22 23 24 The RFC assessed by ALJ Hesse imposed no manipulative limitations concerning Plaintiff s hands. (AR 17.) 25 Plaintiff asserts error, relying on a form called Medical Source 26 Statement - Physical completed by a physician s assistant at St. John 27 Medical Clinic, where Plaintiff received treatment and medication 28 refills on monthly visits between 3 July 2009 and December 2009 1 2 3 (approximately six visits). (AR 19, 305-320.) In evaluating the conclusions of the physician s assistant (identified as Mr. Gougran), the ALJ noted the following: 4 Further, the source statement was merely a standard form 5 that 6 explanation. While a certified physician s assistant s 7 opinions not 8 undersigned has considered Mr. Gougran s opinion and has 9 reflected his opinion in [Plaintiff s] residual functional was filled are out with an little acceptable CFR §§ source, 404.1513(a) the capacity 11 416.913(a) 12 the remainder of [Plaintiff s] medical records. [Plaintiff] 13 has participated in 4 separate consultative examinations 14 with 15 undersigned affords great weight to the opinions of Gabriel 16 T. Fabella, M.D., John Sedgh, M.D. and Dr. Yang as all of 17 their opinions are consistent with each other and the record 18 as a whole. 19 20 medical medical 10 2 determination. substantive and There are no other treating source opinions in physical evaluations and 2 psychiatric. The (AR 19.) 20 21 Plaintiff believes that the testimony of the ME at the hearing 22 supports his contention that he has neuropathy in his hands, which is 23 disabling, 24 manipulative 25 testimony of the ME, Dr. Nafoosi, as indicating that if there were 26 clinical signs of neuropathy documented on physical examination, then, 27 coupled with nerve conduction studies, the doctor would agree with 28 manipulative limitations assessed by Mr. Gougran. (JS at 4, citing AR or, in the limitations alternative, in his RFC. 4 should form Plaintiff the basis for summarizes the 1 57-59.) Plaintiff claims that clinical signs of neuropathy have in 2 fact been documented on physical examination as far back as 2006. 3 (Id.) 4 The Commissioner argues that there is no error in the Decision 5 because the record fails to document any functional limitations 6 related to hand neuropathy. (JS at 5, citing AR 145, 215-219, 223, 7 251, 308-310, 314, 318-320.) 8 9 At the administrative hearing, Plaintiff testified that his hands and feet are always numb. (AR 45.) His testimony was that this has 10 persisted for almost four years. (AR 46.) 11 elicited additional testimony about his asserted hand numbness. (AR 12 56-57.) 13 In contrast to Plaintiff s testimony Plaintiff s attorney about his subjective 14 symptoms, the ALJ noted that examining physicians Drs. Fabella and 15 Sedgh found no objective evidence of any impairment related to 16 Plaintiff s hands. (AR 45, 215-220, 249-253.) 17 internal medicine consultative examination ( CE ) performed on July 18 20, 2006 by Dr. Fabella (AR 215-220), Plaintiff made no complaint of 19 any numbness or manipulative difficulties in his hands. (AR 215.) 20 This is consistent throughout the record; e.g., Plaintiff failed to 21 make complaints of any numbness in his hands during examinations by 22 different doctors. (See citations to the record by the Commissioner at 23 JS 7, which document a lack of any complaints by Plaintiff of hand 24 numbness or manipulative difficulties.) 25 Plaintiff s manipulative abilities were tested, and it was noted that 26 his hand joint flexion was grossly within normal limits bilaterally, 27 that he had normal muscle bulk and tone without any atrophy, and his 28 strength was 5/5 throughout without any focal motor deficits. (AR 2185 Indeed, during the During Dr. Fabella s CE, 1 219.) 2 Plaintiff also received an internal medicine CE from Dr. Sedgh on 3 July 28, 2008 (AR 249-253), and again, while Plaintiff complained of 4 numbness in his feet, he made no complaint of hand impairments. (AR 5 249.) 6 grip and finger approximation. (AR 251.) 7 good active motion, 5/5 strength in all of his extremities, and his 8 sensations were grossly intact and equal bilaterally. (AR 252.) Dr. Sedgh s examination concluded that Plaintiff had a normal Plaintiff had good tone and 9 The evidence in the record indicates that the conclusions of the 10 physician s assistant, Mr. Gougran, were not supported either by any 11 other objective clinical findings in the record, or even by the 12 documentation from that facility.1 13 accord controlling weight to a treating physician s opinion unless it 14 is well supported and not inconsistent with other evidence in the 15 record. 16 ( SSR ) 96-2p. 17 asserted manipulative limitations in his hands and fingering is 18 identified by a one-word limitation ( occasionally ), but is not 19 supported by underlying objective medical evidence. Essentially, Mr. 20 Gougran completed a check-the-box form, which is frowned upon in the 21 absence of supporting objective evidence. See Batson v. Commissioner, 22 359 F.3d 1190, 1195 (9th Cir. 2004). 23 indicates that Plaintiff received treatment related to complaints of 24 hand numbness or any such symptoms. 25 opinion unsupportable by any findings in the record. It is not the ALJ s obligation to See 20 C.F.R. § 404.1527(e)(2); Social Security Ruling Moreover, Mr. Gougran s opinion as to Plaintiff s There is not one record which This renders Mr. Gougran s See Rollins v. 26 1 27 28 Mr. Gougran is not an acceptable medical source under 20 C.F.R. § 404.1513; however, the ALJ, while noting this, provided a thorough analysis of the reasons for her depreciation of Mr. Gougran s opinion. 6 1 Massanari, 261 F.3d 853, 856 (9th Cir. 2001). 2 Plaintiff asserts that the Upper Extremity Neuroconduction 3 Studies Report demonstrates objective evidence of hand neuropathy. 4 (See JS at, citing AR 301-304.) 5 however, does not substantiate Plaintiff s interpretation. 6 most part, the sensory nerve study was normal, as was the delayed 7 response study, and a motor nerve study yielded some mixed results 8 with normal findings and others showing some diminished or decreased 9 results. (AR 301.) An examination of these records, For the This issue was covered by the testimony of the ME, 10 who indicated that there must be abnormal physical findings of 11 numbness demonstrated on physical examination in order to support a 12 conclusion 13 interpretation of the ME s testimony is incorrect, as he eliminates 14 that part of the testimony which concluded that there must be clinical 15 signs of neuropathy documented on physical examination which, if 16 coupled with nerve conduction studies, might support manipulative 17 limitations in Plaintiff s hands. As the ME testified, the record did 18 not contain any such objective examination support. (AR 47, 58, 61- 19 62.) of disability. (AR 61-62.) As such, Plaintiff s 20 In conclusion, the ALJ did give full consideration to the 21 conclusions of the physician s assistant, but properly discarded or 22 depreciated them because of their lack of objective support, their 23 inconsistency with the evidence in the record and with Plaintiff s own 24 history of subjective complaints. The Court thus can find no error in 25 the ALJ s determination that Plaintiff does not suffer any hand 26 neuropathy as part of a severe impairment, which, therefore, would 27 preclude assessing any such manipulative limitations as part of 28 Plaintiff s RFC. 7 1 2 3 The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 4 5 6 DATED: March 5, 2013 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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