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United States District Court, N.D. California

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 ALJ relied, supported a finding that plaintiff has a severe impairment.

  The record includes two reports in which Dr. Wallin, plaintiff's treating physician, set forth opinions on plaintiff's ability to work. The first report is a California Health and Welfare Agency form, completed by Dr. Wallin on May 16, 1995.*fn3 (See Tr. at 317.) On that form, Dr. Wallin identified plaintiff's "medical problem" as "sinusitis, chronic obstructive lung disease" and checked a box to indicate that plaintiff had a disability preventing him from "working full-time at his [] regular job." (See id).*fn4 The second report is a form titled Medical Assessment for Social Security Disability Applicant, completed by Dr. Wallin on February 16, 1996. (See Tr. at 316.) On that form, Dr. Wallin included a diagnosis of "headaches, allergic rhinitis, chronic obstructive pulmonary disease," and checked "yes" to the question, "Does patient's condition cause periodic exacerbations which would affect regular attendance at a fulltime job?" (See id.) Also, on the second form, Dr. Wallin set forth the following limitations: plaintiff can "frequently" lift 11-20 pounds, can "occasionally" lift 21-50 pounds, can engage in "prolonged standing/walking" for 1 hour "at one time" and for 4 hours "in an 8-hour work day," and can engage in "prolonged sitting" for 2 hours "at Page 5 one time" and for 6 hours "in an 8-hour work day." (See id.) Additionally, with respect to the activity of "bending," Dr. Wallin wrote "dizziness lightheaded," and with respect to the activity of "climbing," Dr. Wallin wrote "knee pain." (See id.)

  Dr. Wallin's opinions were contradicted by internist Daniel J. Scotti, M.D. ("Dr. Scotti"), who conducted a consultative physical examination of plaintiff in January 1995. (See Tr. at 140-44.) Dr. Scotti opined that plaintiff's impairments were asthma, for which plaintiff was taking inhalers, and "multiple musculoskeletal and other somatic complaints, including headaches, dizziness, stomach pains, extremity pains, and back pain with no objective findings." (See Tr. at 143.) Dr. Scotti also opined that plaintiff did not have "functional limitation[s] in any of the usual categories including standing, walking, lifting carrying, sitting, handling, fingering, using hand controls, speech, hearing or seeing." (See Tr. at 144.)

  The ALJ, in the 1998 decision, accepted Dr. Scotti's opinion and stated that he gave "little weight to Dr. Wallin's conclusions," which the ALJ characterized as "puzzling." (See Tr. at 177.) In explaining this finding, the ALJ first noted that plaintiff's medical records "describe[d] only minimal findings on his various complaints" and "containe[d] no positive objective musculoskeletal or neurological findings on physical examinations or testing on his complaints of back and leg pain, no positive objective findings on his complaints of headaches and only intermittent findings of wheezing on his complaints of coughing, sneezing and other upper respiratory problems." (See Tr. at 176.) After describing plaintiff's medical records, the ALJ stated:

Dr. Wallin's opinion is inconsistent with the record as a whole including his own treatment notes which describe no significant positive objective findings over time. In fact, Dr. Wallin's opinion is internally inconsistent in that he found the claimant less limited in February 1996 than he had in May 1995 with no improvement or changes in his condition reflected in his treatment notes.
(See id. at 177.)

  "When there is a conflict between the opinions of a treating physician and an examining physician, as here, the ALJ may disregard the opinion of the treating physician 5 Page 6 only if he sets forth specific and legitimate reasons supported by substantial evidence in the record for doing so." Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) (internal quotation and citation omitted). An ALJ may properly disregard the opinion of a treating physician where the opinion is not supported by the record and is inconsistent with other evaluations. See Connect v. Barnhart, 340 F.3d 871, 874-75 (9th Cir. 2003) (holding ALJ properly discredited treating physician's opinion as to claimant's limitations where treatment notes did not indicate basis for stated limitations and examining physician, using information similar to that available to treating physician, found claimant was not disabled).

  Here, the medical evidence before the ALJ when the 1998 hearing was conducted provides substantial evidence for the ALJ's finding that Dr. Wallin's opinions were not supported by plaintiff's medical records. In particular, as detailed by the ALJ, plaintiff's medical records included various tests, the results of which demonstrated either that plaintiff did not have any notable abnormalities or that any abnormality was treatable with medication. Specifically, the records include: (1) an electrocardiogram report noted a variation that "may be normal but such things as ischemia or hyperkalemia should be excluded," (see Tr. at 111); (2) a CT brain scan resulted in "minimal involutional brain findings; . . . otherwise negative," (see Tr. at 102); (3) sinus x-rays showed that plaintiff had sinusitis, for which he was treated with medications, *fn5 (see Tr. at 96, 100; 107; 110); (4) chest x-rays showed that plaintiff's heart was "normal," his aorta "elongated," and his lungs, bones, and soft tissues were "unremarkable;" the radiologist's overall impression was that plaintiff was "within normal limits," (see Tr. at 169); and (5) an arterial examination resulted in a conclusion that plaintiff had "normal distal circulation," and did not have any "significant occlusive narrowing of the major arteries" or "post stress ischemia bilaterally," (see Tr. at 170).

  Moreover, as discussed above, the ALJ accepted the contrary opinions proffered by Page 7 Dr. Scotti. As Dr. Scotti's opinions were based on an independent examination, they also constitute substantial evidence in support of the ALJ's 1998 decision. See Alien v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984) (holding where examining physician offered opinion, based on "his own neurological examination," that claimant could perform sedentary work, while treating physician opined claimant was totally disabled, ALJ's finding that claimant could perform sedentary work was supported by "substantial evidence").

  As noted, the ALJ conducted a second hearing in 2001, at which time the ALJ considered new medical evidence. The only positive test results offered by plaintiff were the results of an "esophagogastroduodenoscopy with biopsy," which, in addition to revealing that plaintiff's esophagus was normal and that he did not have "frank ulcers or masses," disclosed that plaintiff had "severe, diffuse gastritis with prepyloric erosions and moderate duodenitis." (See Tr. at 192.)*fn6 These conditions, however, do not undermine the ALJ's earlier finding that Dr. Wallin's conclusions were unsupported, because, as the ALJ found and plaintiff does not dispute or even address, such impairments are treatable with medication and over-the-counter remedies. (See Tr. at 14.) Moreover, apart from that finding, substantial evidence exists, specifically, the opinion of Dr. Sakamoto, to support the ALJ's finding, made at the second hearing, that plaintiff did not demonstrate his stomach ailments had any "vocationally important consequence." Dr. Sakamoto, an examining physician, provided the ALJ with a summary report, dated January 25, 2001, setting forth the results of a "comprehensive internal medicine evaluation." (See Tr. at 206-10.)*fn7 Dr. Sakamoto, after conducting a physical examination of plaintiff and noting that the medical records indicated plaintiff "had severe diffuse gastritis with pre-pyloric erosions" in Page 8 1998, (see Tr. at 206),*fn8 stated his "impression" that plaintiff currently had: (1) "chronic obstructive pulmonary disease by history and partially by symptoms;"*fn9 (2) "backache of unknown etiology without objective findings;" and (3) "sore legs," although there were "no definitive diagnoses to account for his sore legs and his physical exam [was] normal." (See Tr. at 210.) With respect to functional limitations, Dr. Sakamoto opined that plaintiff "can lift and carry 50 lbs. occasionally and 25 lbs. frequently"*fn10 and "[c]an sit, stand, or walk six hours out of an eight hour day with normal breaks." (See id.) In short, Dr. Sakamoto's opinion provides substantial evidence for the ALJ's finding that plaintiff's impairments "[do] not significantly limit [plaintiff's] physical or mental ability to do basic work activities." See 20 C.F.R. § 416.921(a).

  Plaintiff also argues that the ALJ did not consider a finding made by Dr. Sakamoto that, in plaintiff's view, shows that plaintiff is significantly limited in his ability to perform basic work activities. Plaintiff points to a "Medical Source Statement of Ability to Do Work Related Activities" form in which Dr. Sakamoto provided the opinion that plaintiff could "frequently" lift less than 10 pounds and could "occasionally" lift 10 pounds, and could not engage in balancing, kneeling, crouching, crawling and stooping activities. (See Tr. at 211-12.) Dr. Sakamoto, however, later conceded, while answering written questions posed by Page 9 the ALJ prior to the second hearing, that those restrictions were "not consistent" with the restrictions he set forth in the summary report. (See Tr. at 240.) Dr. Sakamoto explained his inconsistent opinions by stating that he had completed the summary report and the medical source statement at different times, and that at the time he completed the medical source statement, he "felt unreasonably sympathetic with [plaintiff's] unhappy life situation." (See Tr. at 240.) In other words, Dr. Sakamoto retracted the opinion on which plaintiff relies.

  Accordingly, plaintiff has not shown that the ALJ erred with respect to his findings as to opinions of Dr. Wallin and Dr. Sakamoto.

 B. Credibility

  At the first hearing, plaintiff testified, through an interpreter, that he did not think he could work because of "headaches," "runny nose, neck pain," and " sometimes sneezing and . . . cough all day." (See Tr. at 21.) At the second hearing, plaintiff testified, again through an interpreter, that he had "pain in stomach" lasting two to three days at a time, (see Tr. at 30-31), that he was "coughing a lot," had "pains inside chest" while breathing, had a "little bit" of a problem with his sinuses, and had headaches for which he taking Tylenol, (see Tr. at 32). Plaintiff also testified at the second hearing that he had trouble sleeping, that he sometimes did not leave his home, and that if he attempted to walk more than a block, he had legs cramps and back pain. (See Tr. at 33-34.) In his motion for summary judgment, plaintiff argues that his "testimony describing [his] stomach pain, breathing problems, back pain, headaches, and dizziness [was] ignored with no clear reason." (See Pl's Mot. for Summ. J. or Remand at 1.)

  The ALJ has the authority to determine whether a claimant's testimony is credible. See Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991). If an ALJ finds a claimant's testimony not credible, "the ALJ must make a credibility determination with findings sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit claimant's testimony." See Thomas v. Barnhart 278 F.3d 947, 958 (9th Cir. 2002). "If the ALJ's credibility finding is supported by substantial evidence in the record, [the court] may Page 10 not engage in second-guessing." Id. at 959.

  Here, the ALJ did not find plaintiff's subjective testimony credible. In the 1998 opinion, the ALJ, to explain his decision, cited conflicting statements made by plaintiff to the Social Security Administration concerning the extent of his daily activities; plaintiff's statements to his treating physician that his breathing was better with medication and that his leg cramps had decreased because of improved sleep; and plaintiff's failure to comply with his treating physician's repeated directive to stop smoking. (See Tr. at 177-78.) In the 2001 decision, the ALJ again cited plaintiff's failure to stop smoking and the fact that plaintiff's breathing problems were successfully treated with medication. (See Tr. at 14.) The ALJ further found that plaintiff's stomach problem was "perfectly amenable to treatment by various over-the-counter remedies (like Turns)." (See id.)

  A plaintiff cannot obtain benefits by failing to follow prescribed treatment in the absence of an acceptable reason for the failure. See 20 C.F.R. § 416.930. Additionally, among the factors an ALJ may properly consider in making a credibility determination are inconsistent statements by the plaintiff and the effectiveness of medications taken by the plaintiff. See Orteza v. Shalala, 50 F.3d 748, 749-50 (9th Cir. 1995) (citing factors). Here, as noted, the ALJ relied on inconsistencies in plaintiff's statements, plaintiff's failure to stop smoking as directed by his treating physician, and the fact that his impairments are treatable. These findings are sufficiently specific to permit the Court to conclude that the ALJ did not arbitrarily discredit plaintiff's testimony and that the findings are supported by substantial evidence. Consequently, the ALJ's credibility determination will not be disturbed. See Thomas, 278 F.3d at 958-59.

  Accordingly, plaintiff has not shown that the ALJ erred with respect to his credibility findings.

 C. Consideration of Other Evidence

  Plaintiff argues that the ALJ "ignored" other evidence presented at the hearings, specifically, that plaintiff's treating physicians prescribed "strong medications" and that plaintiff has had "trouble keeping [his] weight over 100 pounds." (See Pl.'s Mot. for Summ. Page 11 J or Remand at 1.) plaintiff's argument is not persuasive.

  First, as discussed above, the ALJ did consider plaintiff's medications and found that his various conditions are amenable to treatment by medication. Plaintiff points to no evidence that he experiences any side effects negatively affecting his ability to work or that his medication has been otherwise problematic. Second, the ALJ did consider plaintiff's weight, finding that plaintiff had "a very slight and gradual weight gain and no important deterioration." (See Tr. at 14.)*fn11 Plaintiff points to no evidence that his weight, either alone or in combination with his impairments, significantly limits his ability to do basic work activities. See 20 C.F.R. § 416.921 (a).

  Accordingly, plaintiff has not shown that the ALJ ignored any relevant evidence.


  For the reasons stated above,

  1. plaintiff's motion for summary judgment or for remand is hereby DENIED; and

  2. The Commissioner's cross-motion for summary judgment is hereby GRANTED. The Clerk shall close the file.


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