United States District Court, N.D. California
February 18, 2004.
YAO POO SAEPHAN, Plaintiff,
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant
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 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
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
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
Moreover, as discussed above, the ALJ accepted the contrary opinions
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
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
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
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.
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
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.
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
For the reasons stated above,
1. plaintiff's motion for summary judgment or for remand is hereby
2. The Commissioner's cross-motion for summary judgment is hereby
GRANTED. The Clerk shall close the file.
IT IS SO ORDERED.