Lester v. Chater

69 F.3d 1453, 95 Daily Journal DAR 15699, 95 Cal. Daily Op. Serv. 8972, 1995 U.S. App. LEXIS 33239, 1995 WL 643843
CourtCourt of Appeals for the Ninth Circuit
DecidedNovember 3, 1995
DocketNo. 93-36136
StatusPublished
Cited by10 cases

This text of 69 F.3d 1453 (Lester v. Chater) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lester v. Chater, 69 F.3d 1453, 95 Daily Journal DAR 15699, 95 Cal. Daily Op. Serv. 8972, 1995 U.S. App. LEXIS 33239, 1995 WL 643843 (9th Cir. 1995).

Opinion

REINHARDT, Circuit Judge:

James Lester challenges the Commissioner’s denial of his application for Social Security disability benefits. He argues that the Commissioner erred in failing to take into account the combined impact of his mental and physical impairments in determining whether his condition “equalled” a listed impairment, in disregarding the opinions of his treating physician and examining psychologist, and in rejecting his hearing testimony. We agree with Lester on each of these points. Because the Commissioner would have been compelled to find him disabled if not for these errors, we reverse and remand for payment of benefits.

I.

Lester injured his back in June 1968 while working as a meatcutter and subsequently underwent two laminectomies. He received disability benefits between 1968 and 1974. After 1974, he worked part-time at various jobs, but ceased working altogether in November 1982 due to his worsening back pain.

Lester reapplied for disability benefits in 1984. This claim was denied after an administrative hearing. The Administrative Law Judge (ALJ) concluded that he was not disabled at any time up to June 21, 1985, the date of the decision. Lester did not seek judicial review of the 1985 decision. However, in March 1988, he filed a third application for benefits. Only the 1988 application is before us on appeal. Lester was last insured for disability benefits on December 31, 1987. Thus, to qualify for disability insurance benefits, he must show that he became disabled on or before that date.

Although the medical record contains materials dating back to the 1970’s, our focus is on the period after June 21,1985 (the date of the ALJ’s decision denying Lester’s second application for disability benefits).1 In April 1985, Darrell T. Weinman, M.D., who was Lester’s treating physician at the time, offered the following diagnosis: “mechanical back pain, failed low back surgery syndrome and arachnoiditis of the spinal column.” Dr. Weinman stated that Lester was limited to sedentary work and “not likely to improve.” Robert J. Strunkel, M.D., who also treated Lester in 1985, agreed that his back pain limited him to sedentary work. In addition, Dr. Strunkel noted that he might be suffering from depression.

Dr. Strunkel referred Lester to Yung K. Kho, M.D., who specializes in the care of patients with chronic pain. Dr. Kho remained the treating physician from October 1986 on. After their initial meeting, Dr. Kho diagnosed Lester’s condition as follows: (1) status post lumbar laminectomy, (2) likely post operative arachnoidieulopathy, with (3) chronic myofascial pain syndrome, and (4) suspected pre-existing personality disorder. In subsequent reports, Dr. Kho noted the existence of both a personality disorder and depression, and prescribed antidepressants. To treat the claimant’s back pain, Dr. Kho instituted a program of lumbar injections and physical therapy, which provided some relief. In June 1987, Dr. Kho expressed his opinion that Lester was capable of “some sedentary type of employment.” By December 1987, however, Lester was again reporting increas[1459]*1459ing back pain and, in February 1988, Dr. Kho reported that he was “walking as antalgieally as ever” and had not benefitted from recent injections. An MRI revealed degenerative changes in the lumbar spine, without bulging or herniation. In May 1988, Dr. Kho noted that Lester was having difficulty walking more than one-quarter of a mile and was “essentially a back cripple.”

On February 1989, Lester was examined by a psychologist, Ron Taylor, Ph.D., who interviewed him and conducted psychological testing. Dr. Taylor diagnosed major depression, recurrent and severe, and a personality disorder, concluding that: “The impression is that this fifty-three-year old man is currently, and probably has been since 1982, possibly medically, and probably psychologically unfit for any kind of suitable and feasible substantial gainful employment.” Dr. Taylor further found that the claimant was markedly limited in his ability: (1) to maintain concentration and attention; (2) to perform activities within a schedule, maintain regular attendance, and be punctual; and (3) to complete a normal workday and workweek without interruption from psychological symptoms and to perform at a consistent pace without unreasonable rest periods. He found Lester to be moderately limited in several other work-related areas.2

After reviewing Dr. Taylor’s report, Dr. Kho wrote a report expressing his agreement with Dr. Taylor as to the restrictions on Lester’s mental functioning. In addition to the limitations indicated by Dr. Taylor, Dr. Kho determined that Lester was markedly limited in his ability to travel to unfamiliar places or use public transportation and in his ability to set realistic goals or make plans independent of others. Dr. Kho estimated that all Lester’s functional restrictions had existed since 1982.

At the administrative hearing, conducted in April 1989, Lester testified that he was unable to engage in chores such as vacuuming, mopping, mowing, or washing dishes. He also testified that his daily activities were extremely limited, and that he stayed in bed most of the time.

At the request of the ALJ, Michael Sasser, M.D., a nonexamining psychiatrist, appeared at the hearing to testify as to Lester’s mental status. Dr. Sasser first expressed disagreement with Dr. Taylor’s interpretation of the psychological testing results. According to Dr. Sasser, Lester had no medically determinable mental impairment that met or eq-ualled the criteria contained in the listing for “Affective Disorders.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04 (“Listing § 12.04”). On cross-examination, however, Dr. Sasser acknowledged that Lester suffers from “chronic pain syndrome” and that Lester’s testimony, if credited, would demonstrate marked limitations in his activities of daily living.

A vocational expert, Victor P. Mihayl, also testified at the administrative hearing. The ALJ inquired whether a person of Lester’s education and background who was limited to sedentary work with a sit/stand option and whose pain had a “moderate effect on his concentration and attention and ability to interact with the general public” would be able to perform any type of work. The vocational expert testified that, while such a claimant could not return to Lester’s past work, he could perform the jobs of light vehicle dispatcher, general clerk, or customer service representative.

The ALJ subsequently issued a decision finding that Lester was capable of performing the three types of jobs mentioned by the vocational expert and, therefore, that he was not disabled. The ALJ made a general finding that Lester’s testimony was not credible. Relying on the testimony of Dr. Sasser and Mr. Mihayl, and rejecting the opinion of Dr. Taylor, the ALJ concluded that Lester had no medically determinable mental impairment.

Lester requested review of the ALJ’s decision by the Appeals Council, submitting addi[1460]*1460tional evidence regarding his mental impairment. The Appeals Council reversed and remanded for a new administrative hearing, concluding that the ALJ had erred in his consideration of the claimed mental impairment. The case was assigned to a different ALJ with instructions that the new evidence be considered. On remand, Lester waived his right to a second hearing and requested that the new ALJ issue a decision on the record, including the new evidence. Again, Lester was found not disabled.

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69 F.3d 1453, 95 Daily Journal DAR 15699, 95 Cal. Daily Op. Serv. 8972, 1995 U.S. App. LEXIS 33239, 1995 WL 643843, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lester-v-chater-ca9-1995.