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Orr v. Berryhill

United States District Court, W.D. Washington, Seattle

April 13, 2017

GREGORY ORR, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1]Defendant.

          ORDER AFFIRMING THE COMMISSIONER

          BRIAN A. TSUCHIDA UNITED STATES MAGISTRATE JUDGE.

         Gregory 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.

         BACKGROUND

         Mr. Orr 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 ALJ'S DECISION

         Utilizing the five-step disability evaluation process, [2] 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.[3] 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.

         DISCUSSION

         A. Mr. Orr's testimony

         Mr. Orr 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).

         The ALJ 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.

         The ALJ 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 symptoms.

         The ALJ 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.

         The ALJ 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 credibility.

         The ALJ 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.[4]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 ...


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