Michael Lertchitvikul v. Kilolo Kijakazi

FILED
NOT FOR PUBLICATION
AUG 31 2023
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL LERTCHITVIKUL, No. 22-55536
Plaintiff-Appellant, D.C. No. 2:20-cv-08310-SP
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Sheri Pym, Magistrate Judge, Presiding
Submitted August 17, 2023**
Pasadena, California
Before: WARDLAW, CHRISTEN, and SUNG, Circuit Judges.
Michael Lertchitvikul appeals the district court’s order affirming the
administrative law judge’s (ALJ) denial of disability benefits at step five of the
disability analysis. The ALJ found that Lertchitvikul could perform work as a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
telephone solicitor, cashier, and document preparer. We have jurisdiction pursuant
to 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), and we affirm the district court’s
order.1
Substantial evidence supports the ALJ’s conclusion that Lertchitvikul was
capable of performing “other work that exists in significant numbers in the national
economy.” Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999) (internal
quotation marks omitted); 20 C.F.R. § 404.1520(a)(4)(v). Lertchitvikul’s primary
argument on appeal is that the ALJ erred by failing to include any fingering and
handling limitations in his Residual Functional Capacity determination and
subsequent hypothetical question to the Vocational Expert (VE). Lertchitvikul
does not challenge the ALJ’s other limitations.
Even assuming that the ALJ erred by omitting Dr. Maze’s fingering and
handling limitations,2 any error was harmless. See Burch v. Barnhart, 400 F.3d
676, 679 (9th Cir. 2005) (“A decision of the ALJ will not be reversed for errors
that are harmless.”). The inclusion of Dr. Maze’s limitations (“frequent” fingering
and handling with Lertchitvikul’s right hand and “frequent” fingering and
1
As the parties are familiar with the facts and procedural history of the case,
we will not detail them here except as necessary.
2
Lertchitvikul forfeited any challenge to Dr. Wilson’s fingering and
handling limitations by failing to argue the issue before the district court. See
Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006).
2
“occasional” handling with his left) would not exclude all of the jobs outlined by
the VE. Working as a telephone solicitor requires occasional handling and
frequent fingering. See Telephone Solicitor, DICOT 299.357-014. Thus, the
limitations outlined by Dr. Maze do not preclude Lertchitvikul from performing
the job of telephone solicitor, which exists in significant numbers in the national
economy.3 See Tackett, 180 F.3d at 1102–04.
AFFIRMED.4
3
In his reply brief, Lertchitvikul argues that he cannot perform the job of
telephone solicitor because it requires occasional reaching and the ALJ limited
Lertchitvikul’s overhead reaching. This argument is forfeited. Even if
Lertchitvikul preserved the argument, the VE was aware that the ALJ limited
Lertchitvikul to no overhead reaching, explained that the Dictionary of
Occupational Titles does not distinguish between overhead reaching and reaching
at other levels, and relied on her professional experience to conclude that
Lertchitvikul could work as a telephone solicitor.
4
Because we hold that substantial evidence supports the ALJ’s finding that
Lertchitvikul can perform the job of telephone solicitor, we need not address the
other arguments raised on appeal.
3