Orn v. Astrue

• Citation: 495 F.3d 625
• Decision Date: 16 July 2007
• Docket Number: No. 05-16181.,05-16181.
• Parties: Leo ORN, Plaintiff-Appellant, v. Michael J. ASTRUE,<SMALL><SUP>*</SUP></SMALL> Commissioner of Social Security, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

495 F.3d 625

Leo ORN, Plaintiff-Appellant, v. Michael J. ASTRUE,^* Commissioner of Social Security, Defendant-Appellee.

No. 05-16181.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 19, 2007.

Filed July 16, 2007.

Manuel D. Serpa, Binder and Binder, LLP, Santa Ana, CA, for the appellant.

Sarah Ryan, Special Assistant United States Attorney, Social Security Administration, San Francisco, CA, for the Appellee.

Appeal from the United States District Court for the Eastern District of California; Dennis L. Beck, Magistrate Judge, Presiding. D.C. No. CV-F-04-05761-DLB.

Before: MARY M. SCHROEDER, Chief Circuit Judge, STEPHEN S. TROTT and W. FLETCHER, Circuit Judges.

WILLIAM A. FLETCHER, Circuit Judge:

Leo Orn filed an application for Social Security benefits claiming that he was unable to work because of disability. Orn has been diagnosed with several disorders, including asthma, severe chronic obstructive pulmonary disease, diabetes, sleep apnea, and morbid obesity. Following a remand from the Appeals Council, the Administrative Law Judge ("ALJ") agreed with Orn that he was unable to perform his past work. But, after rejecting the opinions of Orn's treating physicians and Orn's testimony, the ALJ concluded that the government had met its burden to prove that Orn was able to perform other work that exists in the economy. The Appeals Council and district court affirmed.

We hold that the ALJ did not give "`specific, legitimate reasons ... that are based on substantial evidence in the record'" for dismissing the opinions of Orn's two treating physicians. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir.2002) (quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.1989)). We also hold that the ALJ erred in discrediting Orn's testimony. The ALJ's reasons for discrediting Orn's testimony are not "clear and convincing." See Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999). When Orn's testimony and the opinions of his treating physicians are credited, Orn has established that he is disabled. See McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir.2002). We remand for a calculation of benefits.

I. Background

Orn worked in the food service industry for approximately twenty years. On May 23, 2000, while working in a warehouse to prepare pallets for shipment, Orn suffered an asthma attack and collapsed. He was taken to the emergency room and was hospitalized for a day.

After his hospitalization, Orn continued to receive emergency and outpatient medical treatment for his chronic respiratory disorders. Orn has been diagnosed with asthma and severe chronic obstructive pulmonary disease. Both conditions, according to one of his treating physicians, are "progressively worsening." His clinical examinations consistently reveal wheezing and his pulmonary function tests are abnormal. He is on several medications for his respiratory diseases.

Orn was hospitalized for respiratory problems again in 2003. That hospital stay lasted a week. He was discharged with instructions to receive supplemental oxygen twenty-four hours a day. Orn continues to require continuous supplemental oxygen. The oxygen is delivered to his nose through tubing attached to a tank.

Orn has several other medical conditions. He has been diagnosed with sleep apnea. He testified that during the night he is "constant[ly] waking up because [he's] always choking" from the sleep apnea. Orn often sleeps in fifteen-to thirty-minute intervals. During the day, he is "always tired." While he was still working, Orn sometimes fell asleep and his "co-workers [had] to awaken" him.

Orn has diabetes which he treats with oral medication. He has problems with his circulation. He also suffers from chronic foot ulcers, which are open sores that develop on the tops and bottoms of both feet. Orn is morbidly obese. He is 5' 9" tall. In recent years, his weight has fluctuated between about 300 and 320 pounds.

Orn testified that his activities are limited because he is "constantly" short of breath. He can walk for about half an hour, but requires frequent breaks. He cannot sit for longer than half an hour because he develops pain. Orn's wife sometimes helps him dress and shower because he gets "short of breath." Orn does not cook or do any housework other than "make [his bed] or something like that." Orn's daily activities have been limited since he stopped working. He spends most of his time indoors because he must avoid fumes, odors, dust, and gases. His activities include reading, watching television, and coloring in coloring books.

Orn testified that after he stopped working he had gaps in his insurance coverage that affected his ability to obtain treatment for his medical conditions. One of Orn's treating physicians, Dr. Doerning, noted in his report that Orn "has had some difficulty maintaining his insurance and has been through some lapses in his continuity of care with the pulmonary and allergy specialists" due to his lack of insurance. Orn is unable to afford the medical device used to treat sleep apnea. The record indicates that because of financial difficulties, Orn lost his house and is living with relatives.

Dr. Doerning reported significant limitations in Orn's ability to work. He found that Orn's non-exertional limitations, including fatigue, are "severe enough to interfere with attention and concentration" "constantly." In 2002, Dr. Doerning completed a Multiple Impairments Questionnaire that evaluated Orn's capacity to work. He described Orn as capable of sitting for four hours on a "sustained basis" in a "competitive five day a week work environment" and of standing and walking for zero to one hour in that environment. Medical records document numerous other observations by Dr. Doerning. For example, in a physical examination performed in 2002, Dr. Doerning stated that Orn was "still disabled secondary to his respiratory problems."

On April 11, 2002, an ALJ held a hearing to adjudicate Orn's claim for disability benefits. After the hearing, the ALJ denied benefits, concluding that Orn "retains the residual functional capacity to perform sedentary work." The ALJ discredited Orn's testimony. He also rejected Dr. Doerning's evaluations of Orn's ability to sit, stand, and walk. He relied instead on the opinion of the consulting physician for the Department of Social Services, Dr. Karamlou. Dr. Karamlou had examined Orn about a year and a half earlier, on December 20, 2000. Dr. Karamlou's report contains a notation that, in his opinion, Orn was capable of standing and walking for six hours each day in a competitive work environment.

The Appeals Council of the Social Security Administration reversed the ALJ in May of 2002. The council stated that the ALJ erred in rejecting the opinion of Orn's treating physician, in finding that Orn's "activities are inconsistent with his allegations of disabling pain," and in failing to use testimony from a vocational expert. After the decision of the Appeals Council, Orn was hospitalized for one week for respiratory problems and was discharged with instructions to receive continuous supplemental oxygen.

At the second hearing, conducted on June 17, 2003, Orn again testified to limitations imposed by his various medical conditions. He described the continuous supplemental oxygen requirement. He stated that he weighed 311 pounds, which was 13 pounds less than he had weighed six months earlier. Orn also submitted medical evidence for the time period since his previous hearing, including a Multiple Impairments Questionnaire completed in 2003 by a second treating physician, Dr. Nguyen.

Dr. Nguyen was Orn's primary physician during his 2003 hospitalization and provided his post-hospitalization follow-up care. Like Dr. Doerning, Dr. Nguyen opined that Orn's non-exertional limitations, including fatigue, would be "severe enough to interfere with attention and concentration" "constantly." Dr. Nguyen reported that Orn's asthma, chronic obstructive pulmonary disease, diabetes, and morbid obesity "severely compromise his capacity to work in a competitive manner." He assessed Orn as capable of sitting for zero to one hour per day and of standing and walking for zero to one hour per day in a five-day competitive work environment.

The ALJ again discredited Orn's testimony and the opinion of his first treating physician, Dr. Doerning. He also discredited the opinion of Orn's second treating physician, Dr. Nguyen. Despite the additional evidence presented in the second hearing, the ALJ's "conclusion regarding the claimant's physical impairments" was "unchanged." The ALJ gave a hypothetical to the vocational expert that did not include the limitations described by Orn and his two treating physicians. Based on that hypothetical, the vocational expert testified that jobs existed for the Residual Functional Capacity ("RFC") described by the ALJ. The ALJ concluded that Orn was capable of working as a surveillance system monitor, a cashier, and a ticket seller. The Appeals Council affirmed. A federal magistrate, sitting by consent, also affirmed. Orn now appeals.

II. Standard of Review

We review the district court's decision in a social security case de novo. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.2005). The Social Security Administration's disability determination should be upheld unless it contains legal error or is not supported by substantial evidence. Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir.2006); 42 U.S.C. §§ 405(g), 1383(c)(3). "Substantial evidence is more than a mere scintilla but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n. 1 (9th Cir.2005) (internal quotation marks and citation omitted). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch, 400 F.3d at 679 (internal quotation marks and citation omitted). "Where evidence is susceptible to more than one rational...