The opinion of the court was delivered by: MAXINE CHESNEY, District Judge
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT;
GRANTING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT
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.)
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
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
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 ...