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February 18, 2004.

JO ANNE B. BARNHART, Commissioner of Social Security, Defendant

The opinion of the court was delivered by: MAXINE CHESNEY, District Judge

Plaintiff Yao Poo Saephan, proceeding pro se, brings this action under 42 U.S.C. § 405(g) for judicial review of a final decision of the Commissioner of the Social Security Administration ("Commissioner"). Before the Court is plaintiff's motion for summary judgment or, in the alternative, for remand, and the Commissioner's opposition and cross-motion for summary judgment. Plaintiff has not filed a reply in support of his motion or opposition to the Commissioner's cross-motion. Having considered the papers filed in support of and in opposition to the motions, the Court rules as follows.*fn1


  Plaintiff was born in Laos on September 15, 1944, and immigrated to the United States in 1980. (See Certified Transcript of Administrative Proceedings ("Tr.") at 15.) Page 2

  Plaintiff, who worked in Laos as a farmer and a soldier, has not worked since arriving in the United States. (See id.) On December 4, 1994, plaintiff filed with the Social Security Administration ("SSA") an application for Supplemental Security Income benefits, alleging therein and in an accompanying Disability Report that he has been unable to work as of December 1990, as a result of asthma, back pain, arthritis, coughing, sneezing, runny nose, chest pain, and heart burn. (See Tr. at 44, 61.) After plaintiff's application was denied by the SSA, both initially, (see Tr. at 48-51), and on reconsideration, (see Tr. at 54-57), plaintiff requested a hearing before an administrative law judge ("ALJ"), (see Tr. at 58-59). On October 28, 1997, the ALJ conducted a hearing, at which time plaintiff was represented by counsel. (See Tr. at 175.) On January 7, 1998, the ALJ issued a decision, finding that plaintiff "[did] not have a severe impairment" because plaintiff had no impairment or combination of impairments significantly limiting his ability to perform basic work activities. (See Tr. at 179.)

  Plaintiff next filed a request with the Appeals Council, seeking review of the ALJ's 1998 decision. (See Tr. at 180.) The Appeals Council granted review and remanded the matter to the ALJ for consideration of new medical evidence and with directions to obtain an "internal medicine consultative examination with a medical source statement about what [plaintiff] can still do despite the impairments." (See Tr. at 183-84.)

  Following a second hearing conducted on April 5, 2001, at which time plaintiff was represented by counsel, the ALJ issued an opinion dated August 27, 2001, finding that plaintiff's impairments did not have a "demonstrable vocational impact." (See Tr. at 13, 15.) Accordingly, the ALJ denied plaintiffs application for benefits on the ground that the "record [was] insufficient to show any `severe' medically determinable impairment." (See Tr. at 15.) After the Appeals Council denied plaintiff's request for review of the ALJ's 2001 opinion, (see Tr at 4-5), plaintiff filed the instant action.


  The Commissioner's determination to deny disability benefits will not be disturbed if it is supported by substantial evidence and based on the application of correct legal Page 3 standards. See Reddick v. Charter 157 F.3d 715, 720 (9th Cir. 1998). "Substantial evidence means more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). If the evidence is susceptible to more than one rational interpretation, the reviewing court will uphold the decision of the ALJ. See id.


  The ALJ analyzed plaintiff's claim using the Social Security Administration's five-step evaluation process. See 20 C.F.R. § 404.1520.*fn2 At the first step, the ALJ found that plaintiff, who does not work, is not engaging in substantial gainful activity. (See Tr. at 13.) At the second step, the ALJ found that plaintiff does not suffer from a "severe impairment" and, accordingly, denied plaintiff's application. (See Tr. at 15.)

  "An impairment or combination of impairments is not severe if it does not significantly limit [the applicant'[s] physical or mental ability to do basic work activities." 20 C.F.R. § 416.921 (a). "Basic work activities" are "the abilities and aptitudes necessary to do most jobs." See 20 C.F.R. § 416.921 (b). Examples of "basic work activities" include: "(1) Physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) Capacities for seeing, hearing, and speaking; (3) Understanding, carrying out, and remembering simple instructions; (4) Use of judgment; (5) Responding Page 4 appropriately to supervision, co-workers and usual work situations; and (6) Dealing with changes in a routine work setting." See id.

  Plaintiff argues that the ALJ's denial of plaintiff's application was erroneous for several reasons, which the Court will consider in turn.

 A. Opinions of Physicians

  Plaintiff argues that the ALJ did not properly consider the opinion of plaintiff's treating physician, Dr. Joseph Wallin, M.D. ("Dr. Wallin"), and, alternatively, that the opinion of an examining physician, Arthur Sakamoto, M.D. ("Dr. Sakamoto"), on which the ...

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