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Peng See v. Michael J. Astrue

March 22, 2011


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



Plaintiff Peng See ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her application for Supplemental Security Income benefits pursuant to Title 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 an application for Supplemental Security Income benefits on January 10, 2005, alleging disability beginning on or around May 12, 2002. AR 18. Her application was denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). Id. ALJ Christopher Larsen held a hearing on April 4, 2007, and issued an order regarding benefits on June 12, 2007, finding Plaintiff was not disabled. AR 4, 18. Thereafter, on August 4, 2009, the Appeals Council denied review. AR 4.

Hearing Testimony

On April 4, 2007, ALJ Larsen held a hearing in Fresno, California. Plaintiff appeared and testified with the assistance of an interpreter. Her daughter, Ms. Nalor See, also appeared as a witness and testified at the hearing. AR 509-510. Plaintiff was represented by attorney Charles Oren. Vocational Expert ("VE") Linda Ferra appeared and testified by phone. AR 509-531.

Plaintiff is uncertain of her age or weight. AR 518. Nonetheless, the medical records establish that Plaintiff was born on June 15, 1955, and was thus fifty-one years old on the date of the hearing. AR 513. She does not understand English and has no formal education. AR 514, 527. Plaintiff attempted to go to school, but her headaches prevented her from doing so. AR 527. She received no formal education prior to coming to the United States. AR 528. Plaintiff does not drive and resides with her husband and two daughters. AR 514-515. Her sons reside elsewhere. AR 515.

Plaintiff relies heavily on a wheeled oxygen tank owing to her breathing problems. AR 515. Plaintiff has been on oxygen for the past year, although she claims the breathing problems started earlier. At home and at night she uses a larger tank. AR 515, 524. Her breathing difficulties prevent her from going outside but for the occasional visit to her doctor. AR 516. According to Ms. Nalor, Plaintiff totes the wheeled oxygen tank wherever she goes. Plaintiff's breathing difficulties prevent her from helping around the house, and her condition has worsened over the years. AR 523.

When asked how long she could stand, Plaintiff replied "a couple of seconds." AR 517. Plaintiff is unable to walk without assistance from her children, and is unable to stand for any length of time because of her weak knees. AR 516. At night, the pain is more severe and Plaintiff sometimes has to crawl before she can stand up and walk. AR 517. The knee problems started a few years ago, and according to Plaintiff, prevented her from going to work. Id. Plaintiff had been working at a "socks place," but had to discontinue that work because of her inability to stand. Id. Plaintiff's knee problems are persistent and make it difficult for her to wear shoes. Therefore, she only wears sandals. AR 518. Plaintiff in neither able to stand nor walk and therefore avoids going anywhere. Id. She also experiences numbness in her feet, even when she is asleep, and has difficulty balancing. AR 520. Plaintiff is unable to do any significant lifting due to her knee problems. Although she suffers from pain in both knees, one is markedly worse than the other. AR 520. According to Ms. Nalor, one doctor has suggested Plaintiff undergo knee surgery based on his assessment of her x-rays. AR 522. Ms. Nalor testified that Plaintiff has difficulty walking and is in constant pain. Id. She often cries when she has to get up and do something. Id.

Plaintiff suffers from persistent headaches. "When it gets very bad" she goes to the doctor for an injection. AR 519. She sleeps whenever she feels like it and spends much of her day lying down. Id. Plaintiff also suffers, although infrequently, from headaches that can sometimes be intense, requiring her to stay in bed all day. AR 523.

Plaintiff has also been prescribed medication for diabetes which she takes "when [she] can't stand it." AR 520.

With regard to back pain, Plaintiff indicated she stays home watching television to rest her leg. AR 523. According to Ms. Nalor, Plaintiff spends much of her day lying on the couch with her "leg propped up on a pillow." Id. Although she tries to help around the house, Plaintiff's inability to stand precludes her from doing so. AR 524.

When asked if she had to assist Plaintiff with personal hygiene, Ms. Nalor stated that Plaintiff sometimes needs help with her pants. AR 525.

Last year, Plaintiff had applied for work in a North Carolina factory. She would often come home with swollen knees and feet after having been on her feet all day. AR 525. The doctor would recommend a week or so off. However, the constant interruptions prevented Plaintiff from maintaining that employment. Id.

Although Ms. Nalor recalls Dr. Garcia placing Plaintiff on oxygen, she is not certain of his reasons for doing so. AR 526. Ms. Nalor is not aware of any other medical problems other than those testified to by Plaintiff. Id.

VE Ferra was asked to consider several hypothetical questions posed by the ALJ. First, the VE was asked to assume a hypothetical worker of Plaintiff's age, education, and work experience who must avoid concentrated exposure to fumes, odors, dust, gasses and poor ventilation. AR 528. The VE indicated that such a person could work as an assembler, and although some settings might have exposure to fumes, dust, and gasses, seventy percent would not have such unusual exposures. Id. The number of such jobs at the light level for unskilled employment is approximately 33,000 in California, and approximately 330,000 nationwide. Id. At the medium level, there were approximately 15,000 jobs in California and 150,000 nationwide. AR 529.

The ALJ then asked the VE to consider an additional limitation, i.e., the worker's reliance on oxygen. AR 529. When asked what impact that would have on her assessment, the VE opined that the limitation would preclude the hypothetical worker from working since the constant interruptions would prevent the worker from being competitively employed. Id.

The ALJ then instructed the VE to consider the above hypothetical worker with a further limitation. AR 529. The VE was asked to assume that this worker could stand and walk a total of three to four hours in an eight-hour workday, and could sit a total of three to four hours in an eight-hour workday. Id. According to the VE, there were some sedentary assembler positions ranging in number from 5,000 in California to 50,000 nationwide. The VE then adjusted her answer owing to the limitation on sitting and standing, and further reduced those numbers by forty-five percent. AR 530. The VE was not certain of the number of positions in the "light" category, if any, that would permit Plaintiff to sit. Id. The VE believed that theoretically the hypothetical worker could work at the level of light exertion, but as a practical matter, the worker was limited to sedentary work. Id.

Medical Record

The entire medical record was reviewed by the Court (AR 135-508), however, only those medical records relevant to the issues on appeal will be addressed below as needed in this opinion.

ALJ's Findings

The ALJ determined that Plaintiff had not engaged in substantial gainful activity since May 12, 2002, the alleged onset date, and had the medically determinable impairments of diabetes - non-insulin dependent, headaches, and asthma. AR 20.

Based on his review of the objective medical evidence, the ALJ determined that Plaintiff did not have any severe impairment or combination of impairments that significantly limited her ability to perform basic work related activities for a period of twelve consecutive months. AR 20. In addition, the ALJ found that the Plaintiff had not been under a disability as defined by the Social Security Act since January 10, 2005, the date of her initial application for benefits. AR 23. Therefore, the ALJ determined that Plaintiff was not disabled as defined by the Social Security Act. AR 23.


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, the ALJ found that Plaintiff: (1) had not engaged in substantial gainful activity since January 10, 2005; (2) does not have an impairment or a combination of impairments that is considered "severe" based on the requirements in the Regulations (20 C.F.R. § 416.920(b)); (3) does not have an impairment or combination of impairments that significantly limits (or is expected to limit significantly) her ability to perform basic work-related activities for twelve consecutive months (20 C.F.R. § 416.921); and (4) has not been under a disability, as defined in the Social Security Act, since January 10, 2005, the date the application was filed (20 C.F.R. § 416.920(c)). AR 20-23.

Here, Plaintiff argues that the ALJ's finding of no severe impairment cannot withstand scrutiny because it is not supported by substantial evidence, and is the result of legal error.

Moreover, Plaintiff argues that the ALJ failed to comply with Regulations and rules governing the evaluation of mental impairments. Additionally, Plaintiff contends that the ALJ improperly rejected the opinions of Drs. Lessenger, Dozier and Garcia without articulating his reasons for doing so. Plaintiff further alleges that the ALJ disregarded favorable lay witness testimony as to Plaintiff's symptoms, and improperly dismissed Plaintiff's testimony and allegations of pain. (Doc. 16 at 6-19.)


Step Two Findings

Plaintiff argues that the ALJ failed to find her medically determinable impairments to be severe at step two of the sequential evaluation process, and that he further erred by not considering the cumulative effect of her multiple impairments. (Doc. 16 at 8-14.)

At step two of the sequential evaluation process, the ALJ must conclude whether Plaintiff suffers from a "severe" impairment. The regulations define a non-severe impairment as one that does not significantly limit the claimant's physical and mental ability to do basic work activities. An impairment is not severe "if the evidence establishes a slight abnormality that has 'no more than a minimal effect on an individual's ability to work.'" Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). To satisfy step two's requirement of a severe impairment, the claimant must prove the existence of a physical or mental impairment by providing medical evidence consisting of signs, symptoms, and laboratory findings; the claimant's own statement of symptoms alone will not suffice. 20 C.F.R. ยงยง 404.1508, 416.908. The effects of all symptoms must be evaluated on the basis of a medically determinable impairment which can be shown to be the cause of the symptoms. 20 C.F.R. ...

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