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Kathryn M. Lester v. Michael J. Astrue

March 14, 2011


The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge



Plaintiff Kathryn M. Lester ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her application for disability and supplemental security income benefits pursuant to Titles II and XVI of the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Gary S. Austin, United States Magistrate Judge.*fn1


Plaintiff filed applications for disability insurance and supplemental security income benefits in November 1994 and March 1996. See AR 56-59, 193-196. The applications were granted on June 25, 1996. AR 203-212. Subsequently however, Plaintiff's disability was found to have ceased on July 30, 2004, and benefits were terminated. AR 301-309; see also AR 246-249, 290-292. She requested a hearing before an Administrative Law Judge ("ALJ"). AR 288. A hearing was scheduled for January 12, 2005, but Plaintiff failed to appear. AR 274-283. Thereafter, on January 20, 2005, the Commissioner issued a denial of benefits. AR 270-272.

On October 24, 2006, Plaintiff filed another application for supplemental security income benefits. AR 313-320. Plaintiff requested a hearing before an ALJ. AR 295-298. A hearing was held before ALJ Stephen Webster on November 13, 2007, in Bakersfield, California. AR 673-694. ALJ Webster issued an order denying benefits on January 11, 2008. AR 411-417. On May 30, 2008, the Appeals Council remanded the matter for further proceedings. AR 579-583. Thereafter, on December 9, 2008, ALJ Bert Hoffman, Jr. held a hearing in Bakersfield, California. AR 695-732. On February 27, 2009, ALJ Hoffman issued an order denying benefits and finding that Plaintiff was no longer disabled as of July 30, 2004. AR 43-55. Ultimately, on September 25, 2009, the Appeals Council denied review. AR 7-10; see also AR 11-14.

2008 Hearing Testimony*fn3

Ms. Lester was 41 years old as of July 30, 2004, the date her conditions were found to have medically improved sufficiently to render her no longer disabled (AR 313, 43-55). Since the original onset of her disability in 1996, her physical condition has worsened: The bone spurs in her back cause back pain "constantly" except when she is lying down and doing nothing (AR 703-05). She also has arthritis in all her joints, which even prevents such activities as opening a bottle of pills (AR 713). She can walk up to ten minutes, sit up to 30 minutes, and cannot easily bend (AR 705). She sees a pain management specialist for injections and takes Darvocet up to five times a week (AR 704). She takes Wellbutrin and Paxil for her psychiatric conditions (AR 704). She saw Dr. Khokher between 2006 and the beginning of 2008 until she lost her Medicare coverage (AR 706). She now sees Dr. Fernandez (AR 706). She also sees a psychologist, Dr. Davis, approximately once a month as well as a psychiatrist (AR 706-07). In 2007, she had attempted to return to school and to work, but being around others, the stresses entailed, and her difficulties understanding and recalling the information made her quit (AR 708-10).

As to her daily activities, Ms. Lester is presently living at a friend's house (AR 714). She usually wakes up around 9:00 or 10:00 in the morning but suffers severe insomnia (AR 714). She usually watches TV during the day -- up to seven hours a day -- and sometimes walks outside to pet the animals in the backyard (AR 715, 722). She can feed herself but cannot perform tasks such as laundry or changing the sheets because she cannot bend over or lift anything (AR 715). She does try to "pick up after [herself]," which entails putting her dishes in the dishwasher, washing out the sink, or doing some cooking (AR 719). She used to breed and raise rabbits but gave that up (AR 715-16). When she did oversee the rabbit litters, a friend would help her (AR 716). She goes to church on Wednesday nights but not usually on Sundays, because she usually doesn't want to get up (AR 719-20). She presently weighs 210 pounds at a height of five feet two inches (AR 725). She had gained about 15 pounds in the preceding three to four weeks (Id.). Medical Record The entire medical record was reviewed by the Court, however, only those medical records relevant to the issues on appeal will be addressed below as needed in this opinion.

ALJ's Findings

Plaintiff received benefits between 1996 and July 2004, when it was determined that she was no longer disabled. Following challenges to the finding Plaintiff was no longer disabled, in 2009, ALJ Hoffman determined that Plaintiff had not engaged in substantial gainful activity since July 30, 2004, the date disability ended. It was also determined that as of July 2004 Plaintiff had medically determinable impairments, including: major depressive disorder, recurrent; and bilateral facet joint syndrome. AR 45. Nonetheless, the ALJ determined that none of these impairments met or exceeded the severity one of the listing impairments. AR 45-46. The ALJ determined that medical improvement occurred on July 30, 2004. AR 46.

Based on his review of the medical evidence, the ALJ determined that Plaintiff had the RFC to perform a full range of light work, limited to simple repetitive tasks and limited public contact. AR 46-47. The ALJ found that Plaintiff did not have past relevant work. AR 54. Ultimately, the ALJ determined that Plaintiff had the RFC to perform a significant number of jobs that exist in the national economy. AR 54-55.


Congress has provided a limited scope of judicial review of the Commissioner's decision to deny benefits under the Act. In reviewing findings of fact with respect to such determinations, the Court must determine whether the decision of the Commissioner is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence means "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119, n.10 (9th Cir. 1975). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. The record as a whole must be considered, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the evidence and making findings, the Commissioner must apply the proper legal standards. E.g., Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner's determination that the claimant is not disabled if the Secretary applied the proper legal standards, and if the Commissioner's findings are supported by substantial evidence. See Sanchez v. Sec'y of Health and Human Serv., 812 F.2d 509, 510 (9th Cir. 1987).


In order to qualify for benefits, a claimant must establish that she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 1382c (a)(3)(A). A claimant must show that she has a physical or mental impairment of such severity that she is not only unable to do her previous work, but cannot, considering her age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).

In an effort to achieve uniformity of decisions, the Commissioner has promulgated regulations which contain, inter alia, a five-step sequential disability evaluation process. 20 C.F.R. §§ 404.1520 (a)-(f), 416.920 (a)-(f) (1994). Applying this process in this case, and considering the additional steps required where a determination addresses whether a claimant continues to be disabled, the ALJ found that Plaintiff: (1) had not engaged in substantial gainful activity since July 30, 2004; (2) has medically determinable impairments; (3) does not have an impairment or combination of impairments which meets or equals the severity of one of the impairments set forth in Appendix 1, Subpart P, Regulations No. 4; (4) experienced medical improvement as of July 30, 2004; (5) was able to perform light work, limited to simple repetitive tasks with limited public contact; (6) and has the RFC to perform a significant number of jobs that exist in the national economy. AR 45-55.

Here, Plaintiff argues that the ALJ failed to properly consider the opinions of the treating physicians and that he misinterpreted the opinions of the consultative examiners; and (2) the ALJ improperly applied the Medical Vocational Guidelines or Grids. (Doc. 9 at 9-16.)


The ALJ's Consideration of the Medical Opinion Evidence Plaintiff argues that the ALJ erroneously rejected the opinions of treating psychiatrists Khokhar, Davis and Fernandez. Further, Plaintiff argues the ALJ misinterpreted the opinions of consultative examiners Patel and Zhang. (Doc. 9 at 9-14.) Defendant ...

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