Orn v. Astrue

Social Security regulations generally favor treating-source opinions. A well-supported treating opinion that is not inconsistent with other substantial evidence receives controlling weight. Even if it is not entitled to controlling weight, it remains entitled to deference under factors including the duration and nature of treatment, evidentiary support, consistency with the record, and physician specialty. A contradicted treating opinion may be rejected only for specific and legitimate reasons supported by substantial evidence.

Dr. Karamlou's single examination did not itself constitute substantial evidence sufficient to displace the treating physicians. He agreed with their diagnoses and did not identify independent clinical findings, a different supported diagnosis, or objective tests not considered by the treating doctors. His findings were materially the same; only his conclusion that Orn could stand and walk for six hours differed.

The regulatory factors strongly favored Drs. Doerning and Nguyen. Dr. Doerning treated Orn over several years, while Dr. Nguyen treated him during and after his 2003 hospitalization. Nguyen's later opinion was particularly important because it addressed Orn's deterioration and need for continuous oxygen. Their assessments were supported by clinical examinations showing wheezing and respiratory abnormalities, abnormal pulmonary-function tests, medications, hospitalizations, oxygen use, and evidence that Orn's condition was progressively worsening.

The ALJ's assertion that the treating physicians did not identify what Orn could still do was contradicted by their questionnaires. Both doctors specified limits on sitting, standing, walking, lifting, carrying, reaching, handling, and fingering. If the ALJ needed clarification, the proper course was an appropriate inquiry rather than rejection on a demonstrably inaccurate premise.

The ALJ also improperly demanded evidence of decreased range of motion, neurological deficits, disc herniation, stenosis, or nerve-root compression. Those conditions were not the basis of the physicians' opinions. The doctors attributed Orn's limits to respiratory disease, obesity, diabetes, and fatigue, and the record substantially documented those impairments. An ALJ must evaluate a medical opinion on the grounds the physician actually gave.

Once a claimant establishes a medically determinable impairment that could produce the alleged symptoms, an ALJ who finds no malingering must give specific, clear, and convincing reasons for rejecting symptom testimony. The reasons also must comply with the agency's binding rulings concerning symptom evaluation.

Orn's failure to lose weight was not a valid reason to discount his testimony. The governing obesity ruling recognized that obesity treatment often fails and generally prohibits reliance on failure to follow obesity treatment before the claimant has first been found disabled. The record did not show that a treating source prescribed weight loss as treatment, as opposed to providing a hospital discharge notation for an 1,800-calorie diabetic diet, or that weight-loss treatment would clearly succeed in restoring Orn's ability to work.

Nor did failure to lose weight reasonably show that Orn was exaggerating his symptoms. Failure to seek or follow treatment may sometimes bear on credibility when a person alleges pain for which effective relief would ordinarily be sought. But obesity is different: treatment frequently proves ineffective, and failure to adhere to a diet says little about whether the claimant truthfully reports health problems aggravated by obesity.

The ALJ could not rely on gaps in treatment without accounting for Orn's inability to pay. Orn testified that he lacked insurance and could not afford care, and Dr. Doerning documented lapses in continuity of care caused by insurance problems. A claimant cannot be denied benefits for failing to obtain treatment that he cannot afford, particularly where, as here, he sought treatment when able to do so.

Orn's limited activities—reading, watching television, and coloring in coloring books—did not contradict his testimony or show transferable work skills performed for a substantial part of the day. Such undemanding activities bear no meaningful resemblance to competitive employment, especially the sustained attention and emergency responsiveness required of a surveillance-system monitor.

The ALJ's observation that Orn testified responsively at the hearing could be considered only as part of an overall credibility assessment; it could not independently support rejection of his allegations. Because every other stated rationale failed, the ALJ's personal observations could not sustain the adverse credibility finding.

When an ALJ's reasons for rejecting a claimant's testimony are legally insufficient and the credited evidence would require a disability finding, the Ninth Circuit remands for an award of benefits rather than another opportunity for the agency to develop new reasons for denial.

Here, the Commissioner conceded that Orn would be disabled if the treating-physician opinions and Orn's testimony were credited. The court independently reached the same conclusion: the credited limitations precluded the jobs identified at step five. Because the record thus established disability, further proceedings were unnecessary.