Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kole v. Astrue

March 31, 2010


The opinion of the court was delivered by: Honorable Larry M. Boyle United States Magistrate Judge


Currently pending before the Court is Barbara Kay Kole's Motion for Summary Judgment and Motion for Remand to Consider New Evidence. (Docket No. 11). Petitioner seeks review to set aside the final decision of Respondent denying her claim for Disability Insurance Benefits under Title II of the Social Security Act ("the Act"). She brings this action pursuant to 42 U.S.C. § 405(g).

Having carefully reviewed the record and being otherwise fully advised, the Court enters the following Memorandum Decision and Order.


Barbara Kole ("Petitioner" or "Claimant") filed an application for disability insurance benefits under Title II of the Act on or about May 20, 2005, alleging disability beginning September 10, 2004. (AR 17). Her application was denied initially on August 22, 2005, and denied again on reconsideration on September 10, 2004. (AR 17). On October 11, 2005, Petitioner timely requested a hearing before an Administrative Law Judge ("ALJ"). (AR 17).

ALJ Hayward C. Reed held a hearing on August 28, 2007, in Lewiston, ID, where the Petitioner appeared, personally, assisted by her attorney, Paul L. Clark. Id. Vocational Expert, Pauline Peterson, Ph.D,, also appeared and testified at the hearing. (AR 486, 514).

On September 28, 2007, the ALJ denied Petitioner's application for benefits on the grounds that she was not disabled as defined by the provision of the Social Security Act at the time of adjudication. Accordingly, the ALJ made a determination that Petitioner "has not been under a disability, as defined in the Social Security Act, from September 10, 2004, through the date of this decision." (AR 27). Petitioner requested the Appeals Council review the ALJ's decision. The Appeals Council denied review on August 6, 2008, making the AJL's decision the final decision of the Commissioner of Social Security. (AR 7--9).

Having exhausted her administrative remedies, Petitioner timely filed the instant action. Complaint (Docket No. 1). Petitioner requests that this matter be remanded for an ALJ hearing de novo. Plaintiff's Brief (Docket No. 11).*fn1 Petitioner alleges that the Commissioner's decision is not supported by substantial evidence, is contrary to the evidence and based on legal errors. Id. Petitioner asks that the case be remanded for the ALJ to consider new evidence. Id. at 1--2 (Docket No. 11).


At the time of the hearing before the ALJ, Petitioner was fifty-two years old. (AR 26). She completed high school in 1974. (AR 138). Further, Petitioner had fourteen years work experience as a fork truck driver and eleven years as a waste water treatment tester, both at a pulp/paper mill. (AR 134). As previously noted, the ALJ determined that she has been unable to perform either of those past jobs. (AR 299).

The ALJ also determined that Petitioner had severe impairments in her right knee and a post right lobectomy resulting from non-small cell lung cancer. (AR 19). However, the ALJ concluded that, in denying her application, Petitioner had not met her burden of proving that she has been under a disability as defined by the Social Security Act during the period under consideration. (AR 24). The ALJ found Petitioner to "not have an impairment that meets or medically equals one of the listed impairments . . . ." (AR 21). Additionally, the ALJ made a finding that Petitioner "is unable to perform any past relevant work," (AR 25) and that Petitioner has the residual functional capacity to perform light work except that she can lift occasionally 30 pounds and she should avoid prolonged standing or walking greater than 2 hours, squatting, kneeling, crawling and climbing stairs. (AR 22) (internal citations omitted). Additionally, the ALJ, based on the testimony of a vocational expert, and considering other factors, determined that "there are jobs that exist in significant numbers in the national economy that the claimant can perform." (AR 26). In so doing, the ALJ adopted the vocational expert's testimony that Petitioner "would be able to perform the requirements of representative occupations in the sedentary and light exertion level such as a food and beverage order clerk; addresser; ticket seller; potato inspector; and cannery worker." (AR 26--27).

It is also important to note that subsequent to the Appeals Council's denial of Petitioner's request for review, (AR 7), the Commissioner determined, in reviewing a later-filed application, that Petitioner was entitled to disability benefits with on onset date of September 29, 2007, one day after ALJ's negative finding currently under review. See Plaintiff's Proposed Supplement (Docket No. 11-3).


The Court's jurisdiction "is limited to reviewing the administrative record to determine whether the decision is supported by substantial evidence in the record and whether the proper legal standard has been applied." Procedural Order, (Docket No. 2); 42 U.S.C. § 405(g) (2000). Under this standard, the ALJ's decision must be upheld unless it is based on legal error or is not supported by substantial evidence. See 42 U.S.C. § 405(g); Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006).

"'Substantial evidence' means more than a scintilla, but less than a preponderance, i.e. such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). "Where evidence is susceptible to more than one rational interpretation," the ALJ's decision must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, in reviewing the ALJ's decision, this court "must consider the entire record as a whole and may not affirm simply by isolating a 'specific quantum of supporting evidence.'" Robbins, 466 F.3d at 882.

If the Commissioner's decision is supported by substantial evidence and based upon proper legal standards, then it will be upheld. 42 U.S.C. § 405(g) (2000); Matney ex rel. Matney v. Sullivan, 921 F.2d 1016, 1019 (9th Cir. 1992); Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990). Findings of fact by the ALJ are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g); Vidal v. Harris, 637 F.2d 710, 712 (9th Cir. 1981). In other words, if there is substantial evidence to support the ALJ's factual determinations, they must be upheld, even in the face of conflicting evidence. Hall v. Sec'y of Health, Educ. & Welfare, 602 F.2d 1372, 1374 (9th Cir. 1979).

With respect to questions of fact, the role of the Court is to review the record as a whole to determine whether it contains evidence that would allow a reasonable mind to accept the conclusions of the ALJ. See Richardson, 402 U.S. at 401; Matney, 981 F.2d at 1019. The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984), resolving ambiguities, see Vincent ex. rel. Vincent v. Heckler, 739 F.2d 1393, 1394--95 (9th Cir. 1984), and drawing inferences logically flowing from the evidence, Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). When the evidence is susceptible to more than one rational interpretation in a disability proceeding, the reviewing court may not substitute its judgment or interpretation of the record for that of the ALJ. Flatten, 44 F.3d at 1457; Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985).

With respect to questions of law, the ALJ's decision must be based on proper legal standards and will only be reversed for legal error. Matney, 981 F.2d at 1019. The ALJ's construction of the Social Security Act is entitled to deference if it has a reasonable basis in law. See id. However, reviewing courts "will not rubber-stamp an administrative decision that is inconsistent with the statutory mandate or that frustrates the congressional purpose underlying the statute." Smith v. Heckler, 820 F.2d 1093, 1094 (9th Cir. 1987). Reviewing courts must bear in mind that the Social Security Act is remedial and should be construed liberally and "not so as to withhold benefits in marginal cases." Id. at 1095 (citations omitted).

The issue presented in the instant appeal is whether the Appeals Council's finding that Petitioner was not disabled is supported by substantial evidence and whether the finding is based on application of proper legal standards.


When evaluating evidence presented at an administrative hearing, the ALJ must follow a five-step sequential process in determining whether a person is disabled within the meaning of the Act. 20 C.F.R. §§ 404.1520, 416.920. "The burden of proof is on claimant as to steps one through four[, but] as to step five, the burden shifts to Commissioner." Tackett v. Apfel, 180 F.3d 1094 (9th Cir. 1999).

A. Sequential Process

The first step requires the ALJ to determine whether the claimant is engaged in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If the answer is in the affirmative, disability benefits are denied. 20 C.F.R. § 404.1520(b). In the instant action, the ALJ concluded that Petitioner has ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.