United States District Court, W.D. Washington, Seattle
ORDER AFFIRMING THE COMMISSIONER
A. TSUCHIDA UNITED STATES MAGISTRATE JUDGE.
Orr seeks review of the denial of his application for
Disability Insurance Benefits. He contends the ALJ erred by
rejecting his testimony, the lay witness testimony, and the
Veteran's Administration disability rating. Dkt. 9. The
Court AFFIRMS the Commissioner's decision and DISMISSES
the case with prejudice.
is currently 33 years old, has completed a GED and one year
of college, and has worked as a fast food cashier and
manager, cement mason helper, bomb disposal specialist, and
stock control clerk. Tr. 61, 158, 194. He applied for
benefits in July 2015, alleging disability as of April 2014.
Tr. 158. After his application was denied initially and on
reconsideration, the ALJ conducted a hearing and, on July 21,
2016, issued a decision finding Mr. Orr not disabled. Tr.
19-36. The Appeals Council denied Mr. Orr's request for
review, making the ALJ's decision the Commissioner's
final decision. Tr. 1.
the five-step disability evaluation process,  the ALJ found
that Mr. Orr had not engaged in substantial gainful activity
since the alleged onset date; he had the following severe
impairments: posttraumatic stress disorder (PTSD),
depression, headaches, obesity, kidney stones, and left
shoulder strain; and these impairments did not meet or equal
the requirements of a listed impairment. Tr. 21-22. The
ALJ found that Mr. Orr had the residual functional capacity
to perform light work; he can occasionally climb ramps and
stairs; never climb ladders, ropes, or scaffolds;
occasionally balance, stoop, crouch, crawl, and kneel;
occasionally reach overhead with the left upper extremity; he
should avoid concentrated exposure to vibration and hazards;
he can tolerate noise at a moderate level; he can perform
simple routine tasks with a reasoning level of 2; and he is
capable of superficial contact with coworkers bur no contact
with the public. Tr. 24. The ALJ found that although Mr. Orr
cannot perform his past relevant work, there are jobs that
exist in significant numbers in the national economy that he
can perform and he is therefore not disabled. Tr. 34-36.
Mr. Orr's testimony
argues that the ALJ failed to provide clear and convincing
reasons for rejecting his testimony about his symptoms and
functional limitations. Dkt. 9 at 4. Because the ALJ did not
find that Mr. Orr was malingering, the ALJ had to provide
clear and convincing reasons to reject his testimony. See
Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001).
An ALJ does this by making specific findings supported by
substantial evidence. “General findings are
insufficient; rather, the ALJ must identify what testimony is
not credible and what evidence undermines the claimant's
complaints.” Lester v. Chater, 81 F.3d 821,
834 (9th Cir. 1996).
gave several reasons for rejecting Mr. Orr's testimony.
The ALJ found that Mr. Orr's statements were inconsistent
with the objective medical evidence and treatment record. Tr.
26-30. Although inconsistency with the objective medical
evidence cannot be the sole reason an ALJ discounts
subjective complaints, it is a valid factor for the ALJ to
consider in her credibility analysis. Burch v.
Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). Mr. Orr
argues that the normal medical exams the ALJ discussed were
not actually inconsistent with his claims, and that the ALJ
should not have relied on mental status examinations because
such examinations give limited insight to a claimant's
mental functioning. Dkt. 9 at 6-7. By arguing that the ALJ
should have found that the normal examination results
supported his claims instead of undermined them, Mr. Orr asks
the Court to adopt his interpretation of the evidence instead
of the ALJ's. But if the ALJ's interpretation is
rational, as it is here, the Court must uphold that instead
of adopting the claimant's proposed alternative.
Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.
2002). And even if this Court were to adopt the limitation
Mr. Orr proposes on the value of mental status examinations,
the ALJ considered the normal mental status examination
results as one component of the medical record, not the sole
basis of her credibility assessment. The ALJ's assessment
of the medical evidence was rational, and was a valid reason
to reject Mr. Orr's testimony.
found that Mr. Orr's mental impairments, headaches,
syncope, and kidney stones were adequately managed with
medication. Tr. 26, 29-30. The effectiveness of medications
is a factor the ALJ may consider in assessing the severity of
a claimant's symptoms. 20 C.F.R. § 404.1529(c)(3).
Mr. Orr argues that substantial evidence does not support the
ALJ's finding, describing his reports that his symptoms
persisted despite taking medications. Dkt. 9 at 7-9. However,
the ALJ noted Mr. Orr's reports that his headaches were
well managed with treatment and that other medications were
very helpful. Tr. 26. The ALJ was entitled to infer from
these reports that medications were effective in managing his
found that Mr. Orr's delay and/or lack of follow up was
inconsistent with disabling limitations. Tr. 26. The ALJ
noted instances such as mental health treatment that Mr. Orr
did not pursue, delayed follow up for kidney stones, and
recommendations for a sleep study and physical therapy that
were never performed. Tr. 26-29. An ALJ may find a
claimant's failure to seek treatment or follow prescribed
treatment to demonstrate that a claimant's allegations
are inconsistent with the record. Social Security Ruling
(SSR) 16-3p. But the ALJ must consider the possible reasons
the claimant did not seek treatment or follow prescribed
treatment, which may include asking the claimant at the
hearing why he did not seek treatment consistent his
complaints. Id. Mr. Orr asserts that it was
unreasonable for the ALJ to draw an adverse inference here
without obtaining more information about the possible reasons
for this failure. Dkt. 9 at 10-11. Although Mr. Orr lists
various reasons a claimant may not follow prescribed
treatment, and even speculates that it is possible some of
the treatment (such as a sleep study) was performed but is
not documented in the record, mere speculation cannot
undermine the ALJ's finding. As the ALJ noted, the record
contains multiple references to Mr. Orr's delay in
pursuing recommended treatment, or failure to do so. This was
a valid reason to reject his testimony.
found that Mr. Orr's activities were inconsistent with
his allegations. Tr. 31. The ALJ noted that Mr. Orr was a
student at Pierce College, does some cooking, pays bills
online, plays with his children, watches movies or
television, cuts the grass with a riding lawnmower, puts the
dishes away, shops in stores for groceries, plays video
games, and spends an hour online reading the news or emails.
Id. Although the ALJ may not penalize a claimant for
attempting to live a normal life in the face of his
limitations, contradictions between a claimant's reported
activities and his asserted limitations are an issue of
credibility. See Morgan v. Comm'r of Soc. Sec.
Admin., 169 F.3d 595, 600 (9th Cir. 1999). Mr. Orr
argues that the ALJ's finding is not supported by
substantial evidence, pointing to his testimony that he
received accommodations to attend college and eventually
stopped because of his mental health symptoms, and asserting
that his ability to do household chores, play with his
children, and watch television does not detract from his
credibility or contradict his testimony. Dkt. 9 at 11. Even
accepting the ALJ's interpretation of Mr. Orr's
activities, the ALJ did not explain how the activities she
identified contradict Mr. Orr's allegations. The Court
concludes that, without such an explanation, the Court cannot
find this a valid reason to question Mr. Orr's
found that Mr. Orr made statements at the hearing that were
inconsistent with the evidence on file. Tr. 31. The ALJ noted
that Mr. Orr reported that he had accommodations while
attending school due to his mental health problems but there
was no evidence of such accommodations other than one request
for a note from a primary care provider, and that request was
for accommodations based on headaches, not mental health
issues. Id. The ALJ also noted that Mr. Orr
testified that the exposure therapy he underwent as part of
his PTSD treatment was not helpful, but this was contrary to
his reports to his treating doctor. Id. The ALJ
noted that Mr. Orr testified that he did not smoke
cigarettes, but failed to mention that he smoked cigars.
Id. And the ALJ note that Mr. Orr reported to a
provider that he experienced syncope when exerting himself
and while sitting, but reported elsewhere that he never
experienced it while driving and it only happened at home
getting off the couch.Id. The ALJ may consider the
consistency of a claimant's statements with the objective
medical evidence and other evidence in the record when
evaluating the claimant's testimony. SSR 16-3p. Mr. Orr
argues that this evidence is either not inconsistent with his
statements or the inconsistency ...