Ceneen Lazaro Brizuela v. Kilolo Kijakazi

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA — 10 — 11 CENEEN L. B., ) NO. CV 20-7089-MCS(E) ) 12 Plaintiff, ) ) 13 v. ) ORDER ACCEPTING FINDINGS, ) 14 KILOLO KIJAKAZI, Acting ) CONCLUSIONS AND RECOMMENDATIONS Commissioner of Social Security,) 15 ) OF UNITED STATES MAGISTRATE JUDGE Defendant. ) 16 ) — 17 — 18 Pursuant to 28 U.S.C. section 636 , the Court has reviewed the 19 Complaint, all of the records herein and the attached Report and 20 Recommendation of United States Magistrate Judge. Further, the Court 21 has engaged in a de novo review of those portions of the Report and 22 Recommendation to which any objections have been made. The Court 23 accepts and adopts the Magistrate Judge’s Report and Recommendation. — 24 — 25 IT IS ORDERED that: (1) the Report and Recommendation of the 26 Magistrate Judge is accepted and adopted; (2) Plaintiff’s motion for 27 summary judgment is denied; (3) Defendant’s motion for summary 28 judgment is granted; and (4) Judgment is entered in favor of 1] Defendant. — 2 — 3 IT IS FURTHER ORDERED that the Clerk serve forthwith a copy of 4/ this Order, the Magistrate Judge’s Report and Recommendation and the 5] Judgment of this date on Plaintiff, counsel for Plaintiff and counsel 6} for Defendant. — 7 — 8 DATED: October 25, 2021 : — 9 — 10 4, 11 ake Seare: MARK C. SCARSI 12 UNITED STATES DISTRICT JUDGE — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — — 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA — 10 — 11 CENEEN L. B., ) NO. CV 20-7089-MCS(E) Plaintiff, ) 12 ) v. ) REPORT AND RECOMMENDATION OF 13 ) KILOLO KIJAKAZI, Acting ) UNITED STATES MAGISTRATE JUDGE 14 Commissioner of Social Security, ) ) 15 Defendant. ) ___________________________________) — 16 — — 17 — 18 This Report and Recommendation is submitted to the Honorable 19 Mark C. Scarsi, United States District Judge, pursuant to 28 U.S.C. § 20 636 and General Order 01-13 of the United States District Court for 21 the Central District of California. — 22 — 23 PROCEEDINGS — 24 — 25 Plaintiff filed a complaint on August 6, 2020, seeking review of 26 the Commissioner’s denial of benefits. Plaintiff filed a motion for 27 summary judgment on June 9, 2021. Defendant filed a motion for 28 summary judgment on September 20, 2021. The Court has taken the 1 motions under submission without oral argument. See L.R. 7-15; 2 “Order,” filed August 10, 2020. — 3 — 4 BACKGROUND — 5 — 6 Plaintiff asserted disability since December 23, 2003, alleging 7 chronic renal failure (Administrative Record (“A.R.”) 290-93, 313, 8 332, 359, 433). On August 23, 2004, Plaintiff was found disabled as 9 of December 23, 2003, upon an administrative finding that she met a 10 listed impairment (former Listing 6.02) (A.R. 15, 37-38, 136, 433).1 11 On October 23, 2014, after further administrative review, Plaintiff 12 was found no longer disabled as of October 1, 2014 (A.R. 15, 119-21). 13 In a decision dated June 20, 2017, an Administrative Law Judge (“ALJ”) 14 also found that Plaintiff’s disability had ended as of October 1, 2014 15 (A.R. 15, 101-08). The Appeals Council subsequently granted review, 16 vacated the ALJ’s decision and remanded the matter for further 17 proceedings (A.R. 15, 116-17). The Appeals Council found that the ALJ 18 had failed to consider the disability period between October 1, 2014, 19 and the date of the ALJ’s decision (id.). — 20 — 21 On remand, a new ALJ reviewed the record and held a hearing on 22 September 23, 2019, wherein the ALJ heard testimony from Plaintiff, a 23 medical expert (Dr. James McKenna), and a vocational expert (A.R. 1524 22, 29-61). In a decision dated October 7, 2019, the ALJ found that — 25 — 26 1 “[I]f a claimant’s condition meets or equals the listed impairments, [s]he is conclusively presumed to be disabled and 27 entitled to benefits.” Bowen v. New York, 476 U.S. 467, 471 (1986); accord Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. — 28 — 1 Plaintiff has continued to have severe chronic renal failure (A.R. 2 17). The ALJ also found, however, that Plaintiff experienced medical 3 improvement as of October 1, 2014, so as no longer to be deemed 4 disabled under any listed impairment (A.R. 18). The ALJ reasoned 5 that, as of that date, Plaintiff’s medical records from Kaiser 6 Permanente show that her renal function was stable and she had 7 responded successfully to treatment, as later confirmed by Dr. McKenna 8 (id. (referencing, inter alia, Dr. McKenna’s testimony at A.R. 389 42)). — 10 — 11 For the period after October 1, 2014, the ALJ further determined 12 that Plaintiff’s impairment did not meet or equal a listed impairment, 13 including Listing 6.09 (complications of chronic kidney disease (A.R. 14 17)). The ALJ found that Plaintiff retained the residual functional 15 capacity to perform a limited range of light work with: no work 16 involving exposure to hazards or extreme temperatures; no climbing of 17 ladders, ropes or scaffolds; no operating heavy equipment; no more 18 than occasional climbing of ramps or stairs; and no more than frequent 19 balancing, stooping, kneeling, crouching or crawling. See A.R. 18-21 20 (giving significant weight to Dr. McKenna’s opinion at A.R. 40, 4521 46). The ALJ concluded that, ever since October 1, 2014, Plaintiff 22 has been capable of performing her past relevant work as a personnel 23 clerk and receptionist (A.R. 21-22 (adopting vocational expert 24 testimony at A.R. 57-58)). Accordingly, the ALJ denied further 25 disability benefits (A.R. 22). The Appeals Council denied review 26 (A.R. 1-3). 27 /// 28 /// 1 STANDARD OF REVIEW — 2 — 3 Under 42 U.S.C. section 405 (g), this Court reviews the 4 Administration’s decision to determine if: (1) the Administration’s 5 findings are supported by substantial evidence; and (2) the 6 Administration used correct legal standards. See Carmickle v. 7 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, — 8 — 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, — 9 — 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is “such 10 relevant evidence as a reasonable mind might accept as adequate to 11 support a conclusion.” Richardson v. Perales, 402 U.S. 389 , 401 12 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 454 13 F.3d 1063 , 1067 (9th Cir. 2006). — 14 — 15 If the evidence can support either outcome, the court may 16 not substitute its judgment for that of the ALJ. But the 17 Commissioner’s decision cannot be affirmed simply by 18 isolating a specific quantum of supporting evidence. 19 Rather, a court must consider the record as a whole, 20 weighing both evidence that supports and evidence that 21 detracts from the [administrative] conclusion. — 22 — 23 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 24 quotations omitted). 25 /// 26 /// 27 /// 28 /// 1 DISCUSSION — 2 — 3 Plaintiff contends that the Administration materially erred by: 4 (1) mischaracterizing Dr. McKenna’s testimony, which, according to 5 Plaintiff, establishes that Plaintiff equaled Listing 6.09 for a 6 portion of the period at issue; (2) failing to provide “substantial 7 evidence” for rejecting Dr. McKenna’s opinion; and (3) determining 8 that Plaintiff’s prior jobs qualified as “past relevant work.” See 9 Plaintiff’s Motion, pp. 3-9. For the reasons discussed below, the 10 Magistrate Judge recommends that Defendant’s motion be granted and 11 Plaintiff’s motion be denied. The Administration's findings are 12 supported by substantial evidence and are free from material2 legal 13 error. — 14 — 15 A. Summary of the Relevant Medical Record — 16 — 17 Plaintiff previously reported that she had kidney failure and 18 underwent a kidney transplant in 2005, followed by occasional 19 infections. See A.R. 38-39, 554-55, 739-40; see also A.R. 471, 507, 20 513 (April, 2008, July, 2008 and October, 2009 notes indicating 21 Plaintiff had recurrent urinary tract infections after her kidney 22 transplant); see also A.R. 513-14, 546-53 (treatment notes for April, 23 2008 infection); A.R. 532-43 (treatment notes for May, 2009 24 infection); A.R. 451-64 (treatment notes for January, 2010 infection); — 25 — 26 2 The harmless error rule applies to the review of administrative decisions regarding disability. See Garcia v. 27 Commissioner, 768 F.3d 925, 932-33 (9th Cir. 2014); McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, — 28 — 1 A.R. 633 -39, 707-08 (treatment notes for March, 2014 infection). — 2 — 3 Plaintiff also had frequent infections in 2015, 2016, 2017 and 4 2019. See A.R. 40; see also A.R. 786-818, 933-1128 (hospital records 5 for infection from June 16-18, 2015); A.R. 836-43, 918-25, 1249-1389 6 (hospital records for infection from January 1-4, 2016); A.R. 823-26, 7 905-17, 1393-1549 (hospital records for infection from January 21-23, 8 2016); A.R. 846-48, 902-03, 1587-96 (treatment notes for April 23, 9 2016 infection); A.R. 828-29, 892-94, 1670-83 (treatment notes for 10 July 22, 2016 infection); A.R. 1742-51 (treatment notes for 11 November 4, 2016 infection)3; A.R. 1803-1943, 1958-2125 (hospital 12 records for infection from January 23-25, 2017, reporting that the 13 last admission was on May 9, 2016 at A.R. 1818); 4 A.R. 2148 -80, 2191 14 (treatment notes for September 4, 2017 infection); A.R. 2426-42 15 (treatment notes for March 20, 2019 infection); A.R. 2488-2704 16 (hospital records for infection from May 9-11, 2019); A.R. 2742-2935 17 (hospital records for infection from May 29-31, 2019). 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// — 24 — — 25 — 3 But see A.R. 1684 (treatment note for July 25, 2016 26 reflecting that urine culture was negative). 27 4 There are no records for a hospital admission in May of 2016, however. There are only records for an afternoon visit on — 28 — 1 Treating physician Dr. Annie Suh provided a letter dated 2 January 11, 2017,5 stating: — 3 — 4 Ms. Ceneen [B] is a patient in the nephrology clinic at 5 Kaiser Panorama City. She has a history of end-stage-renal6 disease for which she was on dialysis until 2005 when she 7 underwent a kidney transplant. She is on medications for — 8 — — 9 — 5 This letter apparently resulted from solicitations by 10 Plaintiff. Plaintiff sent a message to Dr. Suh dated September 15, 2016, requesting “a letter of verification that 11 [she] cannot work with [her] condition” (A.R. 1727). Therein, Plaintiff stated: — 12 — My immune system is still low that I get infections and — 13 — get sick easily if I mingle with other people for a 14 long time. I am reaching out to you. I need your help from the bottom of my heart, I only have a few years to 15 live my kidney will give up again soon, and I want to spend my short life with my kids & hubby. — 16 — (A.R. 1727). On September 20, 2016, Dr. Suh replied: — 17 — 18 I can write a letter stating your medical conditions and limitations due to your immune system. But since 19 you’re doing so well with your kidney transplant and since your kidney function is excellent, I don’t think 20 I can say that you are not able to work due to your kidney disease. Usually there should be significant — 21 — kidney dysfunction and symptoms rising from that to 22 qualify for disability. 23 (A.R. 1727) (emphasis added). On September 26, 2016, Plaintiff requested, “Is it ok if you don’t mention in your letter that I 24 can work, only my medical condition and my immune system” (A.R. 1735). On January 5, 2017, Plaintiff requested more information — 25 — for her disability claim, suggesting that Dr. Suh could modify 26 the September letter to include an opinion on “the need to take frequent unscheduled breaks and days off 3 to 4 days per month 27 when I get my UTI” (A.R. 1799, 1948-50; see also A.R. 1801 (January 3, 2017 request)). Dr. Suh then indicated she would — 28 — 1 her transplant which potentially lowers her immunity. Ms. 2 [B] has had infections including urinary tract infections 3 and sepsis due to urinary tract infection and has required 2 4 hospitalizations in January 2016. In addition, she has had 5 urgent care visits for urinary tract infection symptoms and 6 has been treated for such. ¶ At this time, Ms. [B] is at 7 an increased risk for infections due to the medications that 8 are needed for her kidney transplant. — 9 — 10 (A.R. 2129). Upon further request by Plaintiff (see A.R. 2705-11), 11 Dr. Suh prepared a letter dated May 2, 2017, opining, “During the 12 episodes of infection [Plaintiff] is not able to work due to symptoms 13 resulting from her infection” (A.R. 2130). However, Dr. Suh told 14 Plaintiff, “[s]ince your kidney function is excellent, I cannot say 15 that your kidney disease is a reason for disability” (A.R. 2706). — 16 — 17 Medical expert Dr. McKenna testified that the listing which would 18 address Plaintiff’s kidney condition is “probably” Listing 6.09 (A.R. 19 40-41). With respect to the October, 2014 time frame in which 20 Plaintiff medically improved, Dr. McKenna testified that Plaintiff did 21 not then meet Listing 6.09 because Listing 6.09 requires at least 22 three hospitalizations within a consecutive 12-month period at least 23 30 days apart, and Plaintiff had “totally improved from the chronic 24 kidney disease” such that “she [did not] fit into anywhere near 25 [Listing 6.09] at all” (A.R. 41). — 26 — 27 With respect to the period after Plaintiff medically improved, 28 Dr. McKenna testified that Plaintiff’s “situation became complicated 1 after 6/16/15, when she began to get a series of urinary tract 2 infections for which she had extended hospitalizations” (A.R. 42). 3 Dr. McKenna referenced the medical record concerning Plaintiff’s 4 hospitalizations for urinary tract infections from June 16 to June 18, 5 2015, from January 1 to January 4, 2016, from January 21 to 6 January 23, 2016, from January 23 to January 25, 2017, from May 9 to 7 May 11, 2019, and from May 29 to May 31, 2019 (A.R. 42-43). Dr. 8 McKenna appeared to opine that Plaintiff equaled Listing 6.09 from 9 June 2015 onwards (A.R. 43-44 (stating, “So, I think, your honor, she 10 would equal 6.09 from the 6.15 – 6.16 listing onwards.”)). — 11 — 12 The ALJ responded that there were not three hospitalizations 13 within one year that were 30 days apart, as specifically required for 14 disability under Listing 6.09 (A.R. 44-45). Dr. McKenna then conceded 15 that the admissions were not 30 days apart (A.R. 44). Plaintiff’s 16 counsel attempted to ask Dr. McKenna whether Plaintiff would “equal” 17 the severity of Listing 6.09, even though Plaintiff did not “meet” the 18 listing: — 19 — 20 ATTY: Doctor, you testified that Ms. [B] would equal medical 21 listing 6.09. She will not meet the listing because 22 she doesn’t have the number of hospitalizations 30 days 23 apart and so forth. But would she equal, nevertheless, 24 the severity of the criteria of the medical listing 25 6.09? 26 ALJ: [Counsel], that is actually a province that I 27 determine. . . . And I’ve told him the equivalency is 28 not permitted in this case where the listing itself is 1 so specific and we don’t have other complicating 2 factors. 3 ATTY: Right. 4 ALJ: So you need to move on to a different line of 5 questioning. 6 ATTY: But she doesn’t meet the specific criteria. 7 ALJ: No, she does not. 8 ATTY: But the question is whether or not she equals for the 9 doctor to testify that she [inaudible]. 10 ALJ: Well, that is not his determination, actually. That’s 11 mine. 12 ATTY: But the doctor can’t give an opinion as to whether or 13 not the claimant equals the criteria of the listing? 14 ALJ: [Counsel], he’s given that and I didn’t accept it, so 15 you need to move on to a different area. 16 (A.R. 46-47). — 17 — 18 B. Substantial Evidence Supports the Conclusion that Plaintiff 19 Medically Improved as of October 1, 2014 and Was Not 20 Disabled Thereafter. — 21 — 22 Plaintiff does not appear to challenge the ALJ’s determination 23 that her medical condition improved as of October 1, 2014, such that 24 she no longer met a listed impairment. As detailed above, Dr. Suh and 25 Dr. McKenna both opined that Plaintiff’s kidney functioning improved 26 after her transplant to the point that her kidneys were functioning 27 normally. See A.R. 1727 (Dr. Suh stating that Plaintiff’s kidney 28 function was excellent, and indicating that she did not think she 1 could say that kidney disease rendered Plaintiff unable to work); A.R. 2 41 (Dr. McKenna testifying that, as of October of 2014, Plaintiff had 3 “totally improved from the chronic kidney disease” she had 4 previously). These opinions furnish substantial evidence of 5 Plaintiff’s improved condition. See Orn v. Astrue, 495 F.3d 625 , 6 631-32 (9th Cir. 2007) (opinion of examining physician based on 7 independent clinical findings can provide substantial evidence to 8 support administrative conclusion of non-disability); Tonapetyan v. 9 Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (opinion of non-examining 10 physician “may constitute substantial evidence when it is consistent 11 with other independent evidence in the record”); Andrews v. Shalala, — 12 — 53 F.3d 1035, 1041 (9th Cir. 1995) (where the opinions of 13 non-examining physicians do not contradict “all other evidence in the 14 record” an ALJ properly may rely on these opinions) (citation and 15 emphasis omitted). — 16 — 17 Dr. McKenna opined that, after October of 2014, Plaintiff 18 retained the residual functional capacity the ALJ found to exist. 19 Compare A.R. 18, 21 (ALJ’s residual functional capacity determination) 20 with A.R. 45-46 (Dr. McKenna’s testimony). This opinion provides 21 substantial evidence to support the ALJ’s residual functional capacity 22 determination for the relevant time period. Andrews v. Shalala, 53 23 F.3d at 1041. The vocational expert testified that a person with this 24 residual functional capacity would be capable of performing 25 Plaintiff’s past relevant work as a personnel clerk/receptionist (A.R. 26 56-58). The ALJ properly relied on this testimony in denying 27 disability benefits for the period following Plaintiff’s medical 28 improvement. See Barker v. Secretary of Health and Human Services, — 1 — 882 F.2d 1474, 1478-80 (9th Cir. 1989); Martinez v. Heckler, 807 F.2d 2 771, 774-75 (9th Cir. 1986). — 3 — 4 C. Plaintiff’s Arguments Are Unavailing.6 — 5 — 6 1. The ALJ Did Not Materially Err in the Evaluation of Dr. 7 McKenna’s Opinion. — 8 — 9 If a claimant suffers a severe impairment, the ALJ is required to 10 decide whether the impairment meets or equals one of the listed 11 impairments. See 20 C.F.R. §§ 404.1520 (d), 416.920(d); Marcia v. 12 Sullivan, 900 F.2d 172, 174-75 (9th Cir. 1990). As previously 13 indicated, disability is presumed if a claimant’s impairment or 14 combination of impairments meets or is medically equivalent to one of 15 the listed impairments. Id.; 20 C.F.R. §§ 404.1520 (d), 416.920(d). — 16 — 17 Plaintiff has the burden of demonstrating disability under the 18 Listings. See Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), 19 cert. denied, 517 U.S. 1122 (1996); see also Sullivan v. Zebley, 493 20 U.S. 521 , 530–31 (1990) (“Zebley”), superseded by statute on other 21 grounds as stated in Kennedy v. Colvin, 738 F.3d 1172, 1174 (9th Cir. 22 2013) (burden is on the claimant to show that his or her impairment — 23 — 24 6 The Court has considered and rejected all of Plaintiff’s arguments. The Court discusses Plaintiff’s principal — 25 — arguments herein. Neither Plaintiff’s arguments nor the 26 circumstances of this case show any “substantial likelihood of prejudice” resulting from any error allegedly committed by the 27 ALJ. See generally McLeod v. Astrue, 640 F.3d 881, 887-88 (9th Cir. 2011) (discussing the standards applicable to evaluating — 28 — 1 meets all of the specified medical criteria for a Listing, or present 2 medical findings equal in severity to all the criteria for the most 3 similar listed impairment). “An impairment that manifests only some 4 of [the listed] criteria, no matter how severely, does not qualify.” 5 Zebley, 493 U.S. at 530 (citing Social Security Ruling 83-19). To 6 prove equivalence, a claimant must offer a “theory” as to how 7 impairments equal a listing, identifying specific medical evidence in 8 the record. Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001); see 9 generally 20 C.F.R. §§ 404.1526 , 416.926 (discussing medical 10 equivalence).7 — 11 — 12 “A claimant cannot qualify for benefits under the 13 ‘equivalence’ step by showing that the overall functional 14 impact of his [or her] . . . impairments is as severe as 15 that of a listed impairment.” The reason for this is clear. 16 Listed impairments are purposefully set at a high level of 17 severity because “the listings were designated to operate as 18 a presumption of disability that makes further inquiry 19 unnecessary.” — 20 — 21 Kennedy v. Colvin, 738 F.3d at 1176 (quoting Zebley, 493 U.S. at 53122 32) (noting, “Since Zebley, we have followed this approach, requiring 23 claimants to equal each criterion of [a listing] rather than relying — 24 — — 25 — 7 Social Security Ruling 83-19 explains that equivalency 26 can be found for a listed impairment “for which one or more of the specified medical findings is missing from the evidence but 27 for which other medical findings of equal or greater clinical significance and relating to the same impairment are present in — 28 — 1 on overall functional impact.”). — 2 — 3 A decision regarding equivalency is based on “all evidence in [a 4 claimant’s] record about [his or her] impairment(s) and its effect on 5 [a claimant] that is relevant to this finding” and on designated 6 medical or psychological consultants. 20 C.F.R. §§ 404.1526 (c), 7 416.926(c). It is ultimately the province of the Commissioner to 8 decide whether a claimant meets or equals a listed impairment. See 20 9 C.F.R. §§ 404.1527 (d)(2), 416.927(d)(2) (“Although we consider 10 opinions from medical sources on issues such as whether your 11 impairment(s) meets or equals the requirements of any impairment(s) in 12 the Listing of Impairments in appendix 1 to this subpart, your 13 residual functional capacity [], or the application of vocational 14 factors, the final responsibility for deciding these issues is 15 reserved to the Commissioner.”). In so deciding, an ALJ “is no more 16 able to ignore specific requirements [of the listings] than she is 17 able to add new ones.” Young v. Sullivan, 911 F.2d 180, 181 , 184-85 18 (9th Cir. 1990) (citation omitted). — 19 — 20 Under Listing 6.09, Plaintiff must demonstrate: — 21 — 22 at least three hospitalizations within a consecutive 23 12-month period and occurring at least 30 days apart. Each 24 hospitalization must last at least 48 hours, including hours 25 in a hospital emergency department immediately before the 26 hospitalization. 27 /// 28 /// 1 See 20 C.F.R. Pt. 404, Subpt. P, App'x 1 § 6.09. Here, substantial 2 evidence supports the ALJ’s conclusion that Plaintiff did not meet or 3 equal Listing 6.09 during the relevant time period. — 4 — 5 In finding Plaintiff did not meet or equal Listing 6.09 after the 6 date she medically improved, the ALJ relied on the medical record and 7 Dr. McKenna, who ultimately conceded that Plaintiff did not experience 8 the requisite number of hospitalizations at least 30 days apart 9 necessary to meet Listing 6.09. See A.R. 17, 21; see also A.R. 44 10 (Dr. McKenna’s concession). Plaintiff does not appear to contest the 11 finding that she failed to meet Listing 6.09. Instead, Plaintiff 12 argues that the ALJ: (1) mischaracterized Dr. McKenna’s testimony as 13 stating that Plaintiff did not “meet or equal” Listing 6.09, when Dr. 14 McKenna assertedly had opined that Plaintiff’s impairment(s) equaled 15 Listing 6.09; and (2) otherwise failed to provide adequate reasons for 16 rejecting Dr. McKenna’s opinion that Plaintiff’s condition equaled 17 Listing 6.09 from June of 2015 onward. See Plaintiff’s Motion, p. 8. 18 Plaintiff has not offered any particular theory regarding how 19 Plaintiff’s impairments are equal in severity to Listing 6.09. She 20 merely relies on Dr. McKenna’s testimony to urge equivalence. 21 See Plaintiff’s Motion, pp. 3-8. — 22 — 23 An ALJ’s material mischaracterization of the record can warrant 24 remand. See, e.g., Regennitter v. Commissioner of Social Sec. Admin., — 25 — 166 F.3d 1294 , 1297 (9th Cir. 1999). It is true that the ALJ 26 inaccurately stated in the written decision that Dr. McKenna had 27 testified Plaintiff’s condition did not “meet or equal” Listing 6.09 28 (A.R. 17) (emphasis added). However, such mischaracterization was not 1 material, in light of: (1) Dr. McKenna’s testimony which ultimately 2 conceded Plaintiff did not have the required hospitalizations to meet 3 Listing 6.09; and (2) the lack of any theory or medical findings 4 arguably equaling in severity all the criteria for Listing 6.09 5 (Kennedy v. Colvin, 738 F.3d at 1174 ); and (3) the actual medical 6 record regarding treatment for Plaintiff’s infections. As the ALJ 7 explained, the record shows that Plaintiff’s — 8 — 9 major problem is clearly the ongoing recurrent urinary tract 10 infections she experiences . . . , requiring several 11 emergency-room visits and a few brief hospitalizations 12 (beginning in approximately June 2015, and most recently in 13 May 2019). However these episodes are not constant, and the 14 claimant has clearly stabilized after either emergency room 15 and/or inpatient hospital care on each occasion. The 16 claimant’s treating nephrologist, Dr. Suh, has also clearly 17 indicated that the claimant has only been physically 18 incapacitated during these episodes, and that her kidney 19 functioning is normal. Otherwise, the majority of the 20 treating records from Kaiser Permanente show that her 21 overall physical functioning is basically stable. . . . Dr. 22 McKenna further noted that . . . she is not experiencing 23 infections or other complications, at a frequency, which 24 would satisfy the criteria in [Listing] 6.09. . . . — 25 — 26 (A.R. 20-21). 27 /// 28 /// 1 Thus, any error relating to the ALJ’s mischaracterization of part 2 of Dr. McKenna’s testimony was harmless. See, e.g., Manny v. Colvin, — 3 — 2016 WL 7042967 , at *6 (M.D. Pa. Aug. 23, 2016) (although evidence 4 revealed that claimant suffered from serious, ongoing and progressive 5 renal disease, where it was undisputed that Listing 6.09’s 6 hospitalization requirement was not satisfied, the ALJ was compelled 7 to deny the application and the court was required to affirm the 8 decision; “[a]n administrative law judge is not required to accept a 9 physician’s opinion when that opinion is not supported by the 10 objective medical evidence (raw data) in the record”) (citing, inter 11 alia, Zebley, 493 U.S. at 531), report and recommendation adopted, — 12 — 2016 WL 7016281 (M.D. Pa. Dec. 1, 2016). — 13 — 14 Although the ALJ explained at the hearing reasons for the 15 rejection of Dr. McKenna’s initial opinion that Plaintiff’s condition 16 would equal Listing 6.09, the ALJ did not repeat such explanation in 17 the ALJ’s written decision. In the written decision, the rejection is 18 implicit. No material error resulted thereby. An ALJ is only 19 required to explain why significant probative evidence has been 20 rejected. See Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006 , 1012 21 (9th Cir. 2003) (“ALJ does not need to discuss every piece of 22 evidence.”) (citations and internal quotation marks omitted); Vincent 23 v. Heckler, 739 F.2d 1393 , 1394–95 (9th Cir. 1984); see also Kennedy 24 v. Colvin, 738 F.3d at 1176 (“an ALJ is not required to discuss the 25 combined effects of a claimant’s impairments or compare them to any 26 listing in an equivalency determination, unless the claimant presents 27 evidence in an effort to establish equivalence”) (internal quotations 28 and citation omitted). The written decision’s failure to discuss Dr. 1 McKenna’s initial opinion that Plaintiff equaled listing 6.09 is 2 harmless. As the ALJ explained during the hearing, in accordance with 3 the authorities detailed above (e.g., 20 C.F.R. §§ 404.1527 (d)(2), 4 416.927(d)(2)), and as Plaintiff concedes (see Plaintiff’s Motion, p. 5 8), the determination of listings equivalence is for the ALJ to make 6 (A.R. 46-47). Here, the ALJ reasonably rejected equivalency because 7 the criteria in Listing 6.09 are extremely specific, and there were no 8 other complicating factors in Plaintiff’s case (id.). As the ALJ 9 explained, Dr. McKenna testified that Plaintiff’s kidney functioning 10 had dramatically improved since her 2005 transplant (as confirmed by 11 Dr. Suh), Plaintiff has had only periodic infections and Plaintiff has 12 not experienced infections or other complications at a frequency which 13 would satisfy Listing 6.09 (A.R. 20-21, 40-44). Under these 14 circumstances, the ALJ did not materially err by failing to explain 15 further in the written decision the ALJ’s rejection of Dr. McKenna’s 16 initial equivalency opinion. See Lewis v. Apfel, 236 F.3d at 514 17 (ALJ’s failure to explain conclusion regarding listings was harmless 18 error because the Plaintiff offered no theory or evidence for how her 19 impairments equaled a listed impairment); Gaston v. Commissioner of 20 Social Sec. Admin., 577 Fed. App’x 739, 741 (9th Cir. 2014) (ALJ was 21 not required to provide “in-depth” equivalency analysis because the 22 claimant did not present medical evidence showing that his 23 impairments, taken together, medically equaled a listing); compare 24 Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990) (ALJ erred in 25 failing to discuss in detail why claimant did not equal a listing 26 where the claimant presented evidence (i.e., alternative diagnostic 27 tests and other evidence regarding his combination of impairments) in 28 an effort to establish equivalence). 1 Relatedly, the ALJ’s errors were harmless because Plaintiff 2 failed to carry her burden of proving listings equivalence. Again, 3 Plaintiff failed to offer any theory (or specific medical findings) 4 regarding how her impairments allegedly equaled Listing 6.09. — 5 — 6 While Plaintiff argues contrary interpretations of the record, it 7 was for the ALJ to interpret the evidence, evaluate credibility and 8 resolve any conflicts in the evidence. See Treichler v. Commissioner, — 9 — 775 F.3d 1090, 1098 (9th Cir. 2014) (court “leaves it to the ALJ” “to 10 resolve conflicts and ambiguities in the record”); accord Lewis v. 11 Apfel, 236 F.3d at 509 ; Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th 12 Cir, 1995). When evidence “is susceptible to more than one rational 13 interpretation,” the Court must uphold the administrative decision. 14 See Andrews v. Shalala, 53 F.3d at 1039-40 ; accord Thomas v. Barnhart, — 15 — 278 F.3d 947, 954 (9th Cir. 2002); Sandgathe v. Chater, 108 F.3d 978 , 16 980 (9th Cir. 1997). The Court will uphold the ALJ's rational 17 interpretation of the evidence in the present case notwithstanding any 18 conflicts in the evidence. — 19 — 20 2. The ALJ Did Not Materially Err in Finding that 21 Plaintiff’s Prior Jobs Qualified as Past Relevant Work. — 22 — 23 Plaintiff also argues that the ALJ erred in finding that 24 Plaintiff’s prior jobs qualified as past relevant work. Plaintiff 25 points out that she last worked in 2003 – within 15 years of her 26 cessation date of October 1, 2014, but not within 15 years of the 27 October 7, 2019 date of ALJ’s adjudication. See Plaintiff’s Motion, 28 p. 9 (citing Social Security Ruling 82-62, 1982 WL 31386 (1982) (“The 1 15-year guide is intended to insure that remote work experience which 2 could not reasonably be expected to be of current relevance is not 3 applied. . . . When deciding whether a title II or title XVI 4 beneficiary continues to be disabled, relevant past work is work he or 5 she performed in the 15-year period prior to the adjudication of the 6 issue of continuing disability.”) (emphasis original)). However, as 7 the Commissioner’s policy statement explains, the relevant 15-year 8 period consists of the 15 years prior to the initial continuing 9 disability review determination. See Program Operations Manual System 10 DI 25001.001 Medical and Vocational Quick Reference Guide ¶ 64 11 (May 30, 2018), available at https://secure.ssa.gov/apps10/poms.nsf/ 12 lnx/0425001001. In this case, therefore, the operative 15-year period 13 is the 15-year period prior to the initial October 23, 2014 continuing 14 disability review determination (rather than the 15-year period prior 15 to ALJ’s decision). The operative period encompasses Plaintiff’s 16 prior work. — 17 — 18 RECOMMENDATION — 19 — 20 For the foregoing reasons, IT IS RECOMMENDED that the Court issue 21 an Order: (1) accepting and adopting this Report and Recommendation; 22 (2) denying Plaintiff’s motion for summary judgment; (3) granting 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 Defendant’s motion for summary judgment; and (4) directing that 2 Judgment be entered in favor of Defendant. — 3 — 4 DATED: September 24, 2021. — 5 — — 6 — /S/ 7 CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE — 8 — — 9 — — 10 — — 11 — — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — 1 NOTICE 2 Reports and Recommendations are not appealable to the Court of 3 Appeals, but may be subject to the right of any party to file 4 objections as provided in the Local Rules Governing the Duties of 5 Magistrate Judges and review by the District Judge whose initials 6 appear in the docket number. No notice of appeal pursuant to the 7 Federal Rules of Appellate Procedure should be filed until entry of 8 the judgment of the District Court. — 9 — — 10 — — 11 — — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —