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Meier v. Colvin

United States District Court, S.D. California

June 9, 2017

EUGENE MEIER, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [DOC. 14]; AND DEFENDANT'S CROSS MOTION FOR SUMMARY JUDGMENT [DOC. 15].

          Hon. Peter C. Lewis United States Magistrate Judge.

         I. INTRODUCTION

         Plaintiff Eugene Meier has filed a complaint seeking judicial review of Defendant Social Security commissioner Carolyn W. Colvin's denial of his application for Supplemental Security Income and for Disability Insurance Benefits under the Social Security Act. (Doc. 1.) Plaintiff has filed a Motion for Summary Judgment (Doc. 14), and Defendant filed a Cross-Motion for Summary Judgment and Opposition to Plaintiff's Motion. (Doc. 15.) Plaintiff then filed a Reply to Defendant's motion. (Doc. 17.) For the reasons set forth below, the Court recommends that Plaintiff's motion be DENIED and that Defendant's motion be GRANTED.

         II. PROCEDURAL HISTORY

         On June 12, 2012, Plaintiff filed an application for Supplemental Security Income pursuant to Title XIV of the Social Security Act, alleging disability beginning November 1, 2011 due to hypertension, degenerative disc disease, asthma, chronic obstructive pulmonary disorder (“COPD”), and sleep apnea. (A.R. 191-196, 223.) Plaintiff's applications were denied initially and upon reconsideration. (A.R. 79-86, 88-98.) Thereafter, Plaintiff filed a written request for a hearing. (A.R. 118-120.) An Administrative Law Judge (“ALJ”) held the hearing on December 2, 2014. (A.R. 51-78.) On January 23, 2015, the ALJ issued a written decision finding Plaintiff not disabled because he could perform a significant number of jobs in the national economy. (A.R. 27-40.) After considering all the evidence in the record as a whole, the ALJ found:

         1. Plaintiff had not engaged in substantial gainful activity since the application date, June 12, 2012. (A.R. 32.)

         2. Plaintiff had the following severe impairments: asthma, COPD, and obesity. (A.R. 32.)

         3. Plaintiff's impairments did not meet or medically equal one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. (A.R. 35.)

         4. Plaintiff retained the residual functional capacity (“RFC”) to perform light work with the following limitations: can sit for 6 hours in an 8 hour workday; stand and/or walk for 6 hours in an 8 hour workday; occasionally lift twenty pounds, and frequently lift ten pounds; occasionally balance, stoop, kneel, crouch, crawl, and climb stairs; never climb ladders, ropes, or scaffolds; and cannot withstand concentrated exposure to temperature extremes, humidity, dust, fumes, gasses, and other pulmonary irritants. (A.R. 35.)

         5. Plaintiff is unable to perform any past relevant work. (A.R. 38.)

         6. Plaintiff was 50 years old on the application date, which is defined as an individual closely approaching advanced age. (A.R. 39.)

         7. Plaintiff has limited education and is able to communicate in English. (A.R. 39.)

         8. Transferability of job skills is immaterial to the determination of disability because the Medical-Vocational Rules supports a finding that Plaintiff is “not disabled.” (A.R. 39.)

         9. In light of Plaintiff's age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. (A.R. 39.)

         10. Plaintiff has not been under a disability, as defined in the Social Security Act, since June 12, 2012, the application date. (A.R. 40.)

         On April 18, 2016, the Appeals Council denied Plaintiff's request to review the ALJ's decision, making that the Commissioner's final decision. (A.R. 11-16.) Plaintiff then filed a federal complaint seeking judicial review of the Commissioner's decision. (Doc. 1.)

         III. ADMINISTRATIVE RECORD

         Plaintiff Eugene Meier is five feet, seven inches tall, weighs 245 pounds, and was 50 years old when he applied for benefits. (A.R. 79.) He worked as a cement finisher from January 2007 to January 2009 and also worked as a plumber from August 2011 to November 2011. (A.R. 191-96.)

         A. Medical Evidence

         1. Treating Physician

         Plaintiff's treatment records with Dr. Taikeun Park at Family Health Centers of San Diego begin with a visit on October 24, 2011. (A.R. 343.) At that appointment, Plaintiff complained of worsening asthma and indicated that it was becoming more difficult to continue his plumbing work. (Id.) Dr. Park's treatment plan included medications to treat asthma, high blood pressure, high cholesterol, and obesity. (Id.) Plaintiff next visited Dr. Park on December 15, 2011 following an asthma-related visit to the emergency room on November 29, 2011. (A.R. 342.) Dr. Park added additional asthma medications as part of Plaintiff's treatment plan. (Id.) An additional visit for worsening shortness of breath on January 16, 2012 produced similar notes and treatment plans for asthma, high blood pressure, high cholesterol, and obesity, but also added sleep apnea to Plaintiff's diagnoses. (A.R. 341.) Two months later, Plaintiff was seen following a mild asthma attack and requested participation in a sleep study for his sleep apnea. (A.R. 340.) The notes from Plaintiff's March 15, 2011 visit indicate that Plaintiff had lost twenty-five pounds since his January visit, was now also complaining of shoulder tendinitis, and erectile dysfunction. (Id.) Dr. Park gave Plaintiff Tylenol and Flexeril to treat his shoulder pain, additional medication to treat erectile dysfunction, and a lipid panel was ordered. (Id.)

         Notes from Plaintiff's April 17, 2012 visit with Dr. Park indicate Plaintiff's blood pressure was under control with the help of his new medication and that a continuous positive airway pressure (“CPAP”) machine was helping Plaintiff sleep better. (A.R. 338.) Plaintiff's asthma medications were reduced to Qvar and an albuterol inhaler, and Dr. Park continued Flexeril to treat Plaintiff's shoulder. (Id.) In May, 2012, Plaintiff's treatment notes indicate Plaintiff was also suffering from leg edema. (A.R. 337.) Plaintiff was given additional medication to treat his high blood pressure, however the medication for his shoulder pain and asthma remained the same. (Id.)

         On August 15, 2012, Plaintiff presented to Dr. Park with decreased extension and flexion in his shoulder and moderate leg edema in addition to the consistent medical issues Plaintiff suffered from including asthma, high blood pressure, obesity, sleep apnea, and impotence. (A.R. 334-36.) On October 17, 2012, Plaintiff displayed no edema, however Dr. Park noted Plaintiff suffered from airway obstruction (COPD). (A.R. 331-33.) Notes from these visits mention no worsening of Plaintiff's asthma or shoulder impairments. (A.R. 331-36.) At a follow-up visit after a cardiology consultation, Dr. Park's notes indicate that Plaintiff had no leg edema. (A.R. 328.) Plaintiff's medication was not altered and no notes indicate any worsening of Plaintiff's condition. (A.R. 328-29.)

         Treatment notes from Plaintiff's visits on December 19, 2012 and February 20, 2013, only address Plaintiff's asthma, where Dr. Park categorizes it as stable in December and exacerbated in February. (A.R. 359-64.) These treatment records do not include information on Plaintiff's sleep apnea, high blood pressure, shoulder pain, impotency, or leg edema. (Id.)

         Plaintiff again visited Dr. Park on May 8, 2013, expressing disappointment in his weight gain and that he was contemplating weight loss surgery. (A.R. 356.) Plaintiff reported that he tries to walk around the block twice and was trying to eat healthier. Plaintiff also reported feeling depressed and down for the previous few months and while thankful for having a roof over his head, was feeling “like I'm right on the edge.” (Id.) Plaintiff denied suicidal ideation, however did request a therapy referral. At this May appointment Plaintiff had coarse breath but no wheezing and no edema. (Id.) Dr. Park encouraged Plaintiff to increase his exercise and modify his unhealthy diet. Dr. Park also advised Plaintiff that if his insurance would cover it, gastric bypass surgery would represent a serious life change that would require Plaintiff to undergo an extensive weight loss regimen, even before the operation. (Id.) Plaintiff indicated that he understood and would call his insurance provider to see if the procedure was covered. (A.R. 357.)

         Plaintiff was treated by one of Dr. Park's co-workers at Family Health Centers of San Diego on May 22, 2013, following a five-day hospitalization. (A.R. 45-459.) Dr. Andrea Crosby Shah indicated that Plaintiff's breathing had recovered, and that he had diabetes. (Id.) Another co-worker, Dr. Diana Kolman, saw Plaintiff following another hospitalization for dehydration and elevated glucose levels. (A.R. 455-457.) Plaintiff displayed no wheezing, some leg edema, and reported increased difficulty sleeping due to his apnea. (A.R. 455.) Notes from that visit indicate Plaintiff was continuing to gain weight, was his mother's primary care giver, and reported depression and anxiety with occasional suicidal ideation without intent to complete. (Id.)

         Dr. Park's treatment notes from July 12, 2013, following hospitalization for exacerbation of asthma and diabetes complications, also include reference to a lump and pain in the back of Plaintiff's neck. (A.R. 460.) Plaintiff's asthma medications remained the same following this visit, and notes indicate that Plaintiff's shoulder issues were being treated with aspirin. (A.R. 461.) Dr. Park suggested both imaging and surgery consultations with respect to the lump on Plaintiff's neck. On August 1, 2013, Dr. Park noted that the lump on Plaintiff's neck was a sebaceous cyst and recommended antibiotics, Percocet for pain control, and cleaning with hydrogen peroxide. (A.R. 463-64.)

         Treatment notes for visits on October 22, 2013, May 9, 2014, and August 15, 2014 all reflect fairly consistent treatment for Plaintiff's asthma and COPD, hypertension, obesity, heart failure, diabetes, and shoulder pain. (A.R. 453-472.) Plaintiff's asthma was consistently treated with an albuterol rescue inhaler, and throughout this time Plaintiff's shoulder was only mentioned in the May 2014 treatment notes. (Id.) Additionally, Plaintiff reported at the October 2013 visit that he was exercising daily on a treadmill. (A.R. 465.)

         Plaintiff's final treatment notes from Dr. Park are from an August 26, 2014 visit where Plaintiff collected documents relevant to his application for disability benefits. (A.R. 450-452.) Plaintiff had continued to gain weight steadily and displayed moderate shortness of breath. At this appointment Plaintiff had severe bilateral leg edema. (Id.) Dr. Park added Qvar to Plaintiff's asthma treatment plan, suggested ...


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