Richard Hogenson, Plaintiff/appellant, v. John J. Callahan,* Acting Commissioner,social Security Administration, Defendant/appellee, 131 F.3d 146 (9th Cir. 1997)

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U.S. Court of Appeals for the Ninth Circuit - 131 F.3d 146 (9th Cir. 1997)

Submitted Nov. 6, 1997. ***Decided Dec. 4, 1997

Appeal from the United States District Court for the District of Oregon.

Before: NOONAN and HAWKINS, Circuit Judges, and MERHIGE,*** District Judge.


Richard Hogenson appeals the district court's affirmance of the decision of the Commissioner of the Social Security Administration ("Commissioner") to deny his application for Supplemental Security Income disability benefits pursuant to Title XVI of the Social Security Act, 42 U.S.C. § 405(g). Hogenson, who previously worked as a security guard, auto parts sales clerk, and truck driver, alleged disability due to severe lower back pain, possible caused by a degenerative disc disease, and numerous other ailments. We affirm.

We review a district court's order upholding the Commissioner's denial of benefits de novo. Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997). The scope of appellate review is limited: the decision of the Commissioner must be affirmed if it is supported by substantial evidence and the Commissioner applied the correct legal standards. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). Factual determinations by the Commissioner, acting through the Commissioner, acting through the administrative law judge, must be supported by substantial evidence. Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996), cert. denied, --- U.S. ---, 117 S. Ct. 953 (1997).

With respect to Hogenson's claim that the administrative law judge ("ALJ") erroneously denied his request for a hearing on the merits of his disability claim, we find nothing in the record to support this contention. The ALJ did grant Hogenson's request for a hearing and provided the requisite notice; both Hogenson and his attorney appeared at the scheduled hearing; and Hogenson was advised of the attendance and availability of expert witnesses for cross-examination. Based on the foregoing, we find that the district court did not err in denying Hogenson's request for another administrative hearing.

The ALJ offered several reasons in support of his rejection of Hogenson's examining physicians' statements that Hogenson was mentally impaired. Chief among these is that the physicians did not "treat" Hogenson; in fact, the record shows that Hogenson never sought treatment for the mental conditions upon which his disability claim is based.

The ALJ may reject the opinion of a treating or examining physician if the ALJ provides specific and legitimate reasons for doing so that are based on substantial evidence in the record. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). If the treating or examining physician's opinion is uncontroverted, the ALJ's reasons for rejecting the opinion must be clear and convincing. Id. Here, we find that the ALJ acted properly when he rejected the conclusions of Hogenson's examining physicians in favor of the nonexamining medical advisor's opinion on mental impairments.

The ALJ's hypothetical posed to the vocational expert was properly limited to those limitations which the ALJ found supported by the record. Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989). Accordingly, we find that there was substantial evidence to support the ALJ's formulation of the hypothetical posed to the vocational expert.



John J. Callahan, Acting Commissioner, Social Security Administration, is automatically substituted for his predecessor, Shirley S. Chater, Commissioner, Social Security Administration, pursuant to Fed. R. App. P. 43(c)


* The panel finds this case appropriate for submission without argument pursuant to Fed. R. App. P. 34(a) and Ninth Circuit Rule 340-4


* Honorable Robert R. Merhige, Jr., Senior United States District Judge for the Eastern District of Virginia, sitting by designation


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3