# Kirk E. Latham, Jr. v. Commissioner of Social Security

> District Court, C.D. California · March 4, 2020

URL: https://www.frixlaw.com/law-library/cases/10037183

## Case

- **Court:** District Court, C.D. California
- **Decided:** March 4, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
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11 KIRK E. L.,1 Case No. 5:19-cv-01310-AFM
12 Plaintiff,
MEMORANDUM OPINION AND
13 v.
ORDER AFFIRMING DECISION
14 ANDREW M. SAUL, OF THE COMMISSIONER
15 Commissioner of Social Security,
16 Defendant.
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Plaintiff filed this action seeking review of the Commissioner’s final decision
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denying his applications for disability insurance benefits and supplemental security
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income. In accordancewith the Court’s case management order, the parties have filed
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memorandum briefs addressing the merits of the disputed issues. The matter is now
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ready for decision.
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BACKGROUND
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In October and November 2015, Plaintiff applied for disability insurance
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benefits and supplemental security income. In both applications, Plaintiff alleged
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1 Plaintiff’s name has been partially redacted in accordance with Federal Rule of Civil Procedure
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5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case
28 Management of the Judicial Conference of the United States.
1 disability beginning October 4, 2013. Plaintiff’s applications were denied initially
2 and upon reconsideration. (Administrative Record [“AR”] 76-95, 98-117, 221-240.)
3 A hearing took place on June 14, 2018 before an Administrative Law Judge (“ALJ”).
4 After confirming that he desired to do so, Plaintiff proceeded without representation.
5 Plaintiff, a medical expert, and a vocational expert (“VE”) all testified at the hearing.
6 (AR 43-58.)
7 In a decision dated July 26, 2018, the ALJ found that Plaintiff suffered from
8 the following severe impairments: diabetes mellitus with retinopathy,with injections,
9 and with cataract surgery bilaterally; status post mitral valve replacement; chronic
10 kidney disease stage 3; chronic back pain; and obesity. (AR 14.) After concluding
11 that Plaintiff did not have an impairment or combination of impairments that met or
12 equaled a Listed Impairment, the ALJ assessed Plaintiff’s residual functional
13 capacity (“RFC”). Specifically, the ALJ found Plaintiff was able to perform light
14 work with the following limitations: Plaintiff can occasionally lift and carry 20
15 pounds; frequently lift and carry 10 pounds; stand and walk (with normal breaks) for
16 a total of 6 hours of an 8-hour workday; sit (with normal breaks) for a total of 6 hours
17 of an 8-hour workday; postural limitations are all frequent; no climbing ladders,
18 ropes, or scaffolds; no unprotected heights, moving dangerous machinery, or any job
19 that requires driving a motor vehicle; no concentrated exposure to humidity, wetness,
20 dust, odors, fumes, pulmonary irritants, extremes of cold and heat; limited to
21 monocular vision, so no job requiring excellent depth perception; and no working
22 with objects smaller than a quarter. (AR 15.) Relying on the testimony of the VE, the
23 ALJ found that Plaintiff could not perform his past relevant work but could perform
24 other work existing in significant numbers in the national economy. (AR 18-20.)
25 Accordingly, the ALJ concluded that Plaintiff was not disabled. (AR 20.)
26 The Appeals Council subsequently denied Plaintiff’s request for review (AR
27 1-5), rendering the ALJ’s decision the final decision of the Commissioner.
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1 DISPUTED ISSUE
2 Whether the ALJ’sdecision is supported by substantial evidence and free from
3 legal error.
4 STANDARD OF REVIEW
5 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to
6 determine whether the Commissioner’s findings are supported by substantial
7 evidence and whether the proper legal standards were applied. See Treichler v.
8 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Substantial
9 evidence means “more than a mere scintilla” but less than a preponderance. See
10 Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d
11 1028, 1035 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a
12 reasonable mind might accept as adequate to support a conclusion.” Richardson, 402
13 U.S. at 401. This Court must review the record as a whole, weighing both the
14 evidence that supports and the evidence that detracts from the Commissioner’s
15 conclusion. Lingenfelter, 504 F.3d at 1035. Where evidence is susceptible of more
16 than one rational interpretation, the Commissioner’s decision must be upheld. See
17 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).
18 DISCUSSION
19 I. Medical Record
20 In summarizing the medical record, the ALJ began by noting that Plaintiff had
21 been treated at Kaiser Permanente Medical Group for type 2 diabetes mellitus,
22 proliferative diabetic retinopathy (PDR), essential hypertension, and congestive heart
23 failure since at least November 2014. (AR 334-872.) In January 2015, Plaintiff’s
24 visual acuity was 20/50 in the right eye and counting fingers at three feet in the left
25 eye. Treatment notes reflect that Plaintiff was status post cataract extraction in 2007,
26 pan retinal photocoagulation (PRP) in the left eye in 2009 and 2011, PRP in the right
27 eye in 2010, and fill-in PRP in the right eye in October and December 2015. (AR
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1 350, 365, 649-651, 876-877.) Plaintiff was treated with intravitreal injections for
2 recurrent macular edema in both eyes, with improvement. (AR 350-351, 366.)
3 In February 2015,Plaintiff was treated for shortness of breath and leg swelling.
4 Examination revealed edema in the legs from knees to feet. Plaintiff’s blood pressure
5 was elevated, but treatment notes indicated that Plaintiff had been taking his
6 medication once a day rather than twice a day as directed. Plaintiff was diagnosed
7 with dyspnea, congestive heart failure, and essential hypertension. (AR 377-379,
8 775.) Cardiac tests revealed a diastolic murmur with a grade of 2/6. (AR 404.)
9 Plaintiff was diagnosed with severe mitral valve stenosis. (AR 388-390, 775-779.)
10 In March 2015, Plaintiff underwent mitral valve replacement. (AR 460, 488,
11 820.) Plaintiff’s shortness of breath and edema improved significantly after his
12 cardiac surgery. (AR 820.) In April 2015, Plaintiff reported doing better. He indicated
13 that he was able to walk four to five times a day without any discomfort and denied
14 shortness of breath or other symptoms. (AR 460, 820, 859.) Similarly, in May 2015,
15 Plaintiff reported feeling better and had no chest pain or shortness of breath.
16 Plaintiff’s fatigue also was improving. (AR 523.) By June 2015, Plaintiff was
17 walking two to three hours a day. (AR 546.) Subsequent examinations revealed
18 normal cardiovascular findings. (AR 548 (June 2015), 567 (July 2015), 899-900
19 (January 2016), 910 (February 2016), 932 (April 2016), 1208-1209 (July 2016),
20 1677-1678, 1788-1789 (November 2016).) An echocardiogram performed in
21 December 2016 revealed that Plaintiff’s heart function and prosthetic mitral valve
22 were stable. (AR 1872.)
23 In June 2015, Plaintiff complained of right hip pain. He was diagnosed with
24 right hip bursitis. (AR 545-548.) In September 2015, thoracic spine x-rays revealed
25 mild to moderate degenerative joint disease. Lumbar spine x-rays showed mild
26 degenerative joint disease at L1-L2 and minimal disease at other levels. (AR 609-
27 610.) Plaintiff was prescribed pain medication and advised to do stretching exercises.
28 (AR 611-612.)In February 2016, Plaintiff reported that his back pain was improving,
1 and treatment notes indicate that it was controlled with prescribed medications. (AR
2 910.)
3 The ALJ observedthat once Plaintiff began taking his medications as directed,
4 his hypertension and chronic kidney disease stabilized.His hypertension and diabetes
5 were noted as well controlled. (AR 488-489, 931-933, 942, 1093-1096, 1205-1206.)
6 The ALJ also noted that Plaintiff suffered from foot ulcers, but progress notes
7 showed that the ulcers healed with medication. (AR 1092, 1164, 1209, 1220.)
8 In 2015 and 2016, Plaintiff reported exercising 540 to 840 minutes per week
9 at a moderate to strenuous level. (AR 660, 930.) In October 2016, Plaintiff reported
10 walking three to five miles a day. (AR 1447.) In November 2016, he was exercising
11 120 minutes per day, five days a week at a moderate to strenuous level. (AR 1785.)
12 In July 2017, Plaintiff was exercising 120 minutes per day, seven days a week at
13 moderate to strenuous level. (AR 2636.)
14 The ALJ discussed the testimony of medical expert Patrick G. McCaffery,
15 M.D. Dr. McCaffery had reviewed the medical evidence from November 2014 to
16 April 19, 2018. He opined that Plaintiff did not meet or equal a visual listing because
17 the right eye is better than 20/200.(AR 47-48.) According to Dr. McCaffery, Plaintiff
18 would be able to see objects larger than a quarter or an inch. Because Plaintiff
19 appeared to be monocular, he would lack the fine depth perception necessary for
20 assembling small parts. In addition, as a result of his visual impairments, he should
21 not work at unprotected heights, on ladders or scaffolding, and should not operate
22 machinery. (AR 48.)
23 The ALJ also discussed the opinions of State agency medical consultants, both
24 of whom opined that Plaintiff was able to perform a range of light exertional work
25 with postural, environmental, and visual limitations. (AR 18, citing AR 80-82, 90-
26 92, 103-105, 113-115.)
27 In assessing Plaintiff’s RFC, the ALJ gave significant weight to
28 Dr. McCaffery’s opinion. He noted that Dr. McCaffery was a Board-certified
1 ophthalmologist, had reviewed the treatment records, understood Social Security
2 disability requirements, and his opinions were well reasoned and consistent with the
3 record as a whole. (AR 18.) He also found the opinions of the State agency physicians
4 to be consistent with other evidence and gave them significant weight. (AR 18.)
5 II. Analysis
6 Plaintiff contends that the ALJ’s decision is not supported by substantial
7 evidence. According to Plaintiff, the 3,450 pages of medical records contain
8 “everything needed to prove my severe impairments and why I’m unable to work.”
9 (ECF No. 17 at 2.) He argues that the ALJ’s decision fails to “take into consideration
10 my 3450 pages of records supporting severe impairments.” (ECF No. 17 at 3.)
11 Plaintiff’s conclusory argument lacks factual support. As set forth above, the ALJ’s
12 decision reflects that he considered the medical records. Plaintiff does not identify
13 any specific relevant medical evidence that the ALJ failed to consider.2 Essentially,
14 Plaintiff’s argument amounts to a disagreement as to how the evidence should be
15 interpreted. However, so long as the ALJ’s interpretation of the record is rational and
16 supported by substantial evidence, which it is here, the Court may not disturb it. See
17 Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (“[I]f evidence is susceptible of
18 more than one rational interpretation, the decision of the ALJ must be upheld.”).
19 Next, Plaintiff points out that he is unable to drive at night and consequently
20 is precluded from performing delivery jobs. (ECF No. 17 at 2.) The ALJ, however,
21 adopted Plaintiff’s limitation, incorporating a restriction against driving in his RFC.
22 (See AR 15.) The fact that Plaintiff cannot perform work that requires driving merely
23 precludes him from performing certain occupations. While this includes his past
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2The Court notes that the voluminous nature of the record is due, in significant part, to the fact that
25 nearly all of the records from Kaiser Permanente include duplicate or redundant pages as well as
blank pages or pages that contain no relevant information, but simply indicate “End of Encounter.”
26 See e.g., 906-907, 928-929, 1017, 1018, 1021, 1023, 1031, 1033, 1045-1048, 1053, 1058-1061,
1070-1072, 1074-1075, 1078-1080, 1844-1846, 1851-1853, 2773-2775.) For example, as a result
27 of duplication and blank pages, records of an email Plaintiff sent to his provider regarding a
prescription consume nearly 20 pages of the record (AR 1073-1091) and a single office visit on
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1 relevant work, it does not preclude him from performing other work so long as that
2 work is consistent with his RFC. As discussed below, the VE identified such work.
3 Next, Plaintiff argues that the ALJ contradicted himself “by saying I do not
4 have any impairment or combination of impairments.” (ECF No. 17 at 2.) The basis
5 for Plaintiff’s argument is not clear. There is no contradiction between finding
6 Plaintiff suffered from severe impairments and concluding that thoseimpairments do
7 not meet or equal a Listing.
8 To the extent that Plaintiff seeks to challenge the ALJ’s conclusion that he
9 does not meet or equal a Listing, such a challenge lacks merit. Plaintiff bears the
10 burden of showing that he has an impairment that meets or equals the criteria of a
11 listed impairment. Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005). To “meet”
12 a listed impairment, a claimant must establish that his condition satisfies each
13 element of the listed impairment in question. See Sullivan v. Zebley, 493 U.S. 521,
14 530 (1990); Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). To “equal” a listed
15 impairment, a claimant “must establish symptoms, signs, and laboratory findings” at
16 least equal in severity and duration to all of the criteria for the most similar listed
17 impairment. Tackett, 180 F.3d at 1099-1100 (quoting 20 C.F.R. § 404.1526).
18 Other than a conclusory assertion, Plaintiff does not explain how his
19 impairments meet or equal a listed impairment. In particular, Plaintiff neither
20 identifies a Listing he believes his impairment(s) meet or equal nor points to any
21 medical evidence or physician’s opinion that undermines the ALJ’s conclusion.
22 Indeed, it appears that the only relevant evidence is the testimony of Dr. McCaffery,
23 whose opinion supports the ALJ’s conclusion that Plaintiff’s impairments do not
24 meet or equal a Listing.
25 Plaintiff next alleges that the ALJ’s decision erroneously states that Plaintiff
26 exercises and walks. According to Plaintiff, he does not “do both,” he only walks.
27 (ECF No. 17 at 2.) Plaintiff’s allegation does not warrant reversal of the disability
28 determination. To begin with, the record supports the ALJ’s statement. That is,
1 Plaintiff’s treatment notes explicitly state that Plaintiff “exercises” for various
2 lengths of time. (See, e.g., AR 660, 930, 1785.) In any event, Plaintiff fails to show
3 how this alleged error affected the ALJ’s disability determination. AnALJ’sdecision
4 will not be reversed based upon an error that is harmless. See Molina v. Astrue, 674
5 F.3d 1104, 1111, 1122 (9th Cir. 2012) (explainingthat “we may not reverse an ALJ’s
6 decision on account of an error that is harmless,” and stating that error is harmless
7 when it is “inconsequential to the ultimate nondisability determination”) (citation
8 omitted).
9 Plaintiff argues that the ALJ failed to consider the combination of his severe
10 impairments when posing the hypothetical to the VE. (ECF No. 17 at 2-3.) Contrary
11 to Plaintiff’s contention, the ALJ included numerous limitations stemming from
12 Plaintiff’s multiple impairments, including, for example, restrictions on his ability to
13 work with small objects; perform work requiring depth perception; drive; lift and
14 carry;climb ladders, ropes, andscaffolds; work with dangerous machinery; andwork
15 involving exposure to humidity, wetness, dust, odors, fumes, pulmonary irritants, and
16 extreme cold or heat. Indeed, as a result of the foregoing significant restrictions, the
17 ALJ concluded that Plaintiff was unable to perform his past relevant work. Plaintiff
18 fails to identify any additional limitation that the ALJ failed to consider or
19 incorporate.
20 Finally, Plaintiff complains that he worked at his driver/delivery job for 27
21 years and it is “all I know and have no transfer skills for other jobs.” (ECF No. 17 at
22 3.)The VE testified that an individual with the RFC set out by the ALJ could perform
23 jobs existing in significant numbers in the national economy – namely, bench
24 assembler and packer. (AR 55-56.) As Respondent correctly points out, the jobs
25 identified by the VE are unskilled, which means transferable skills are not required.
26 See 20 C.F.R. §§ 404.1568(a), 416.968(a) (“unskilled work” is defined as “work
27 which needs little or no judgment to do simple duties that can be learned on the job
28 in a short period of time”). The issue of transferability was not relevant. SeeSSR 82–
1 | 41, 1982 WL 31389, at *1 (“[I]f it is determined that there are no transferable skills,
2 || a finding of ‘not disabled’ may be based on the ability to do unskilled work.”’). The
3 || VE’s testimony constitutes substantial evidence supporting the ALJ’s finding that
4 || Plaintiff could perform work existing in significant numbers in the national economy.
5 || See Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005); Osenbrock v. Apfel,
6 || 240 F.3d 1157, 1162 (9th Cir. 2001);
7 ORDER
8 IT IS THEREFORE ORDERED that Judgment be entered affirming the
9 || decision of the Commissioner and dismissing this action with prejudice.
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11 || DATED: 3/4/2020
12 (wy Moc .
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14 ALEXANDER F. MacKINNON
UNITED STATES MAGISTRATE JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10037183. Public record. Not legal advice.