Orn v. Astrue

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEO ORN,  No. 05-16181
Plaintiff-Appellant,
D.C. No.
v.
 CV-F-04-05761-
MICHAEL J. ASTRUE,* DLB
Commissioner of Social Security,
OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of California
Dennis L. Beck, Magistrate Judge, Presiding
Argued and Submitted
April 19, 2007—San Francisco, California
Filed July 16, 2007
Before: Mary M. Schroeder, Chief Circuit Judge,
Stephen S. Trott and William A. Fletcher, Circuit Judges.
Opinion by Judge William A. Fletcher
*Michael J. Astrue is substituted for his predecessor Jo Anne B. Barn-
hart as Commissioner of the Social Security Administration. Fed. R. App.
P. 43(c)(2).
8453
ORN v. ASTRUE 8457
COUNSEL
Manuel D. Serpa, Binder and Binder, LLP, Santa Ana, Cali-
fornia, for the appellant.
Sarah Ryan, Special Assistant United States Attorney, Social
Security Administration, San Francisco, California, for the
Appellee.
OPINION
W. 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, diabe-
tes, 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
8458 ORN v. ASTRUE
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 discredit-
ing 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 dis-
abled. 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 ware-
house 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 emer-
gency and outpatient medical treatment for his chronic respi-
ratory disorders. Orn has been diagnosed with asthma and
severe chronic obstructive pulmonary disease. Both condi-
tions, according to one of his treating physicians, are “pro-
gressively worsening.” His clinical examinations consistently
reveal wheezing and his pulmonary function tests are abnor-
mal. 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 supplemen-
tal oxygen. The oxygen is delivered to his nose through tub-
ing 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”
ORN v. ASTRUE 8459
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 some-
times 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 treat-
ment for his medical conditions. One of Orn’s treating physi-
cians, 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 pulmo-
nary 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 difficul-
ties, Orn lost his house and is living with relatives.
Dr. Doerning reported significant limitations in Orn’s abil-
ity to work. He found that Orn’s non-exertional limitations,
including fatigue, are “severe enough to interfere with atten-
8460 ORN v. ASTRUE
tion and concentration” “constantly.” In 2002, Dr. Doerning
completed a Multiple Impairments Questionnaire that evalu-
ated 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 walk-
ing 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 dis-
credited 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 Decem-
ber 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 alle-
gations 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 con-
tinuous 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
ORN v. ASTRUE 8461
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 Ques-
tionnaire 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 “se-
vere 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 discred-
ited the opinion of Orn’s second treating physician, Dr.
Nguyen. Despite the additional evidence presented in the sec-
ond 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 capa-
ble 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.
8462 ORN v. ASTRUE
2005). The Social Security Administration’s disability deter-
mination 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. Barn-
hart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (internal quota-
tion 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 interpretation,” the ALJ’s decision should be
upheld. Id. “However, a reviewing court must consider the
entire record as a whole and may not affirm simply by isolat-
ing a ‘specific quantum of supporting evidence.’ ” Robbins v.
Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting
Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). We
review only the reasons provided by the ALJ in the disability
determination and may not affirm the ALJ on a ground upon
which he did not rely. See Connett v. Barnhart, 340 F.3d 871,
874 (9th Cir. 2003).
III. Discussion
At step one of the five-step disability determination, the
ALJ concluded that Orn had not engaged in substantial gain-
ful activity since the alleged onset of his disability in 2000.
See 20 C.F.R. §§ 404.1520, 416.920 (describing disability
determination); Burch, 400 F.3d at 679 (same). At step two,
the ALJ concluded that Orn had established that his asthma,
chronic obstructive pulmonary disease, left knee problems,
and obesity were all severe impairments because each inter-
fered with his ability to perform basic work activities. See 20
C.F.R. § 404.1521; Webb v. Barnhart, 433 F.3d 683, 686 (9th
Cir. 2005). The ALJ acknowledged that because Orn had a
severe medically determinable impairment, “all medically
determinable impairments must be considered in the remain-
ing steps of the sequential analysis.” See 42 U.S.C.
ORN v. ASTRUE 8463
§ 423(d)(2)(B) (“In determining whether an individual’s . . .
impairments are of a sufficient medical severity that such . . .
impairments could be the basis of eligibility under this sec-
tion, the Commissioner of Social Security shall consider the
combined effect of all of the individual’s impairments without
regard to whether any such impairment, if considered sepa-
rately, would be of such severity.”); Celaya v. Halter, 332
F.3d 1177, 1181-82 (9th Cir. 2003) (same). At step three, the
ALJ concluded that none of Orn’s impairments met or
equaled a listed impairment which would require an automatic
finding of disability. At step four, the ALJ concluded that
Orn’s impairments prevented him from performing his past
work. The burden then shifted to the government to prove that
Orn could perform “other work that exists in the national
economy.” See 20 C.F.R. § 404.1545(a)(5)(ii). Finally, at step
five, the ALJ concluded that Orn’s RFC allowed him to per-
form sedentary work. The ALJ concluded that Orn was capa-
ble of working as a surveillance system monitor, a cashier,
and a ticket seller.
The ALJ concluded that Orn was not disabled within the
meaning of Social Security regulations by disregarding the
opinions of his two treating physicians and the testimony of
Orn at his two hearings. We agree with Orn that the ALJ
improperly disregarded this evidence.
A. Opinions of Treating Physicians
Orn argues that the ALJ improperly disregarded the opin-
ions of his treating physicians, Drs. Doerning and Nguyen.
Both Drs. Doerning and Nguyen offered diagnoses of Orn’s
medical conditions, prognoses for his conditions, and assess-
ments of his ability to work. The record contains numerous
reports and forms completed by Orn’s two treating physicians
from 1999 through 2003. However, the ALJ chose to rely on
the opinion of a consulting physician, Dr. Karamlou, who per-
formed one physical examination of Orn in 2000. Based on
8464 ORN v. ASTRUE
that examination, Dr. Karamlou opined that Orn could stand
and walk for six hours in an eight-hour workday.
[1] By rule, the Social Security Administration favors the
opinion of a treating physician over non-treating physicians.
See 20 C.F.R. § 404.1527. If a treating physician’s opinion is
“well-supported by medically acceptable clinical and labora-
tory diagnostic techniques and is not inconsistent with the
other substantial evidence in [the] case record, [it will be
given] controlling weight.” Id. § 404.1527(d)(2). If a treating
physician’s opinion is not given “controlling weight” because
it is not “well-supported” or because it is inconsistent with
other substantial evidence in the record, the Administration
considers specified factors in determining the weight it will be
given. Those factors include the “[l]ength of the treatment
relationship and the frequency of examination” by the treating
physician; and the “nature and extent of the treatment rela-
tionship” between the patient and the treating physician. Id.
§ 404.1527(d)(2)(i)-(ii). Generally, the opinions of examining
physicians are afforded more weight than those of non-
examining physicians, and the opinions of examining non-
treating physicians are afforded less weight than those of
treating physicians. Id. § 404.1527(d)(1)-(2). Additional fac-
tors relevant to evaluating any medical opinion, not limited to
the opinion of the treating physician, include the amount of
relevant evidence that supports the opinion and the quality of
the explanation provided; the consistency of the medical opin-
ion with the record as a whole; the specialty of the physician
providing the opinion; and “[o]ther factors” such as the
degree of understanding a physician has of the Administra-
tion’s “disability programs and their evidentiary require-
ments” and the degree of his or her familiarity with other
information in the case record. Id. § 404.1527(d)(3)-(6).
The Administration has explained § 404.1527 in Social
Security Ruling 96-2p. That ruling provides, in relevant part:
[A] finding that a treating source medical opinion is
not well-supported by medically acceptable clinical
ORN v. ASTRUE 8465
and laboratory diagnostic techniques or is inconsis-
tent with the other substantial evidence in the case
record means only that the opinion is not entitled to
“controlling weight,” not that the opinion should be
rejected. Treating source medical opinions are still
entitled to deference and must be weighed using all
of the factors provided in 20 C.F.R. 404.1527 . . . .
In many cases, a treating source’s medical opinion
will be entitled to the greatest weight and should be
adopted, even if it does not meet the test for control-
ling weight.
S.S.R. 96-2p at 4 (Cum. Ed. 1996), available at 61 Fed. Reg.
34,490, 34,491 (July 2, 1996).
In turn, we have explained:
The opinions of treating doctors should be given
more weight than the opinions of doctors who do not
treat the claimant. Lester [v. Chater, 81 F.3d 821,
830 (9th Cir. 1995) (as amended).] Where the treat-
ing doctor’s opinion is not contradicted by another
doctor, it may be rejected only for “clear and con-
vincing” reasons supported by substantial evidence
in the record. Id. (internal quotation marks omitted).
Even if the treating doctor’s opinion is contradicted
by another doctor, the ALJ may not reject this opin-
ion without providing “specific and legitimate rea-
sons” supported by substantial evidence in the
record. Id. at 830, quoting Murray v. Heckler, 722
F.2d 499, 502 (9th Cir. 1983). This can be done by
setting out a detailed and thorough summary of the
facts and conflicting clinical evidence, stating his
interpretation thereof, and making findings. Maga-
llanes [v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989).]
The ALJ must do more than offer his conclusions.
He must set forth his own interpretations and explain
why they, rather than the doctors’, are correct.
8466 ORN v. ASTRUE
Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir.
1988).
Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998); accord
Thomas, 278 F.3d at 957; Lester, 81 F.3d at 830-31.
[2] When an examining physician relies on the same clini-
cal findings as a treating physician, but differs only in his or
her conclusions, the conclusions of the examining physician
are not “substantial evidence.” As we explained in Murray,
“In this case, . . . the findings of the non-treating physician
were the same as those of the treating physician. It was his
conclusions that differed. . . . If the ALJ wishes to disregard
the opinion of the treating physician, he or she must make
findings setting forth specific, legitimate reasons for doing so
that are based on substantial evidence in the record.” 722 F.2d
at 501-02 (emphases in original). By contrast, when an exam-
ining physician provides “independent clinical findings that
differ from the findings of the treating physician,” such find-
ings are “substantial evidence.” Miller v. Heckler, 770 F.2d
845, 849 (9th Cir. 1985); accord Andrews v. Shalala, 53 F.3d
1035, 1041 (9th Cir. 1995); Magallanes, 881 F.2d at 751;
Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1985) (as
amended). Independent clinical findings can be either (1)
diagnoses that differ from those offered by another physician
and that are supported by substantial evidence, see Allen, 749
F.2d at 579, or (2) findings based on objective medical tests
that the treating physician has not herself considered, see
Andrews, 53 F.3d at 1041.
If there is “substantial evidence” in the record contradicting
the opinion of the treating physician, the opinion of the treat-
ing physician is no longer entitled to “controlling weight.” 20
C.F.R. § 404.1527(d)(2). In that event, the ALJ is instructed
by § 404.1527(d)(2) to consider the factors listed in
§ 404.1527(d)(2)-(6) in determining what weight to accord
the opinion of the treating physician. Even when contradicted
by an opinion of an examining physician that constitutes sub-
ORN v. ASTRUE 8467
stantial evidence, the treating physician’s opinion is “still
entitled to deference.” S.S.R. 96-2p at 4, 61 Fed. Reg. at
34,491. “In many cases, a treating source’s medical opinion
will be entitled to the greatest weight and should be adopted,
even if it does not meet the test for controlling weight.” Id. As
we stated in Reddick, “Even if the treating doctor’s opinion is
contradicted by another doctor, the ALJ may not reject this
opinion without providing ‘specific and legitimate reasons’
supported by substantial evidence in the record.” 157 F.3d at
725 (quoting Murray, 772 F.2d at 502).
1. Treating Physicians’ Opinions are Entitled to Weight
The Commissioner argues that Dr. Karamlou’s opinion
constitutes per se substantial evidence to support the ALJ’s
disregard of the opinions of Drs. Doerning and Nguyen. We
disagree. Dr. Karamlou’s opinion that Orn could stand and
walk for six hours did not rely on “independent findings.” In
addition, the criteria established by § 404.1527 indicate that
the opinions of Drs. Doerning and Nguyen are entitled to
weight in Orn’s disability determination.
[3] Dr. Karamlou, like Drs. Doerning and Nguyen, per-
formed a physical examination of Orn. Dr. Karamlou agreed
with the diagnoses provided by Orn’s treating physicians and
offered no alternative diagnosis. Dr. Karamlou’s opinion did
not rest on results from objective clinical tests that Drs.
Doerning and Nguyen had not considered. Dr. Karamlou’s
findings “were the same as those of the treating physician[s].
It was his conclusions that differed.” Murray, 722 F.2d at 501
(emphasis in original). Therefore, his conclusion concerning
Orn’s ability to stand or walk based on that examination was
not an “independent finding,” and his opinion does not alone
constitute substantial evidence to support the rejection of
Orn’s treating physicians’ opinions. See Reddick, 157 F.3d at
725; see also Robbins, 466 F.3d at 882 (prohibiting affir-
mance in Social Security disability cases “simply by isolating
8468 ORN v. ASTRUE
a ‘specific quantum of supporting evidence’ ” (citation omit-
ted)).
[4] A second, independent reason precludes the ALJ from
disregarding the opinions of the treating physicians in this
case. Even if Dr. Karamlou’s opinion were “substantial evi-
dence,” § 404.1527 still requires deference to the treating
physicians’ opinions. 20 C.F.R. § 404.1527; see S.S.R. 96-2p
at 1 (“A finding that a treating source’s medical opinion is not
entitled to controlling weight does not mean that the opinion
is rejected.”), 61 Fed. Reg. at 34,490; see also Green-Younger
v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003); McGoffin v.
Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002). As discussed
above, § 404.1527 lists several factors that increase the
weight afforded to Orn’s treating physicians’ opinions in this
case.
For example, the treating relationship of both physicians
provides a “unique perspective” on Orn’s condition. See 20
C.F.R. § 404.1527(d)(2). In addition, the nature and extent of
the physicians’ relationships with Orn adds significant weight
to their opinions. Id. § 404.1527(d)(2)(i)-(ii). Dr. Doerning
was Orn’s treating physician between 1999 through 2002, and
his reports cover that entire period. Dr. Nguyen was Orn’s pri-
mary physician during his 2003 hospitalization and provided
his post-hospitalization follow-up treatment. His question-
naire was the most recent report in the record. It was also the
only report describing the effects of two significant medical
events: Orn’s latest hospitalization and his reliance on contin-
uous supplemental oxygen.
[5] The “[s]upportability” of Orn’s treating physicians’
opinions adds further weight. See id. § 404.1527(d)(3). The
primary function of medical records is to promote communi-
cation and recordkeeping for health care personnel — not to
provide evidence for disability determinations. We therefore
do not require that a medical condition be mentioned in every
report to conclude that a physician’s opinion is supported by
ORN v. ASTRUE 8469
the record. When viewed in its entirety, the record provides
ample support for the opinions of Drs. Doerning and Nguyen.
The record contains numerous reports from Orn’s health care
providers, as well as results from medical tests and laboratory
findings, that support the questionnaires completed by Drs.
Doerning and Nguyen.
[6] Finally, the consistency of Orn’s treating physicians’
reports merits additional weight. See id. § 404.1527(d)(4).
Consistency does not require similarity in findings over time
despite a claimant’s evolving medical status. Rather, as
required by the applicable regulation, the opinions of Drs.
Doerning and Nguyen were consistent “with the record as a
whole.” See id. The physicians offered opinions that were
substantiated by the contemporaneous medical tests and Orn’s
medical condition. The gradual decrease in Orn’s physical
capacity, as illustrated by the evaluations of his treating physi-
cians, is supported by the record. As Dr. Doerning stated,
Orn’s condition was “progressively worsening.”
2. No “Specific, Legitimate Reasons” Supported by
Substantial Evidence
[7] The two reasons provided by the ALJ for rejecting the
opinions of Orn’s treating physicians are insufficient. The rea-
sons are not “specific, legitimate reasons” that are supported
by “substantial evidence.” See Thomas, 278 F.3d at 957. In
fact, the record contradicts them.
[8] The ALJ’s first reason for rejecting both treating physi-
cians’ opinions of Orn’s functional capacity was that those
physicians had “fail[ed] to indicate what claimant could do
despite his limitations.” The record shows the opposite. Dr.
Doerning’s multiple impairments questionnaire, completed on
April 5, 2002, indicates that Orn could sit for four hours a day
and could stand and walk for one hour per day. It also reports
that Orn had no limitations in reaching, handling, fingering,
or lifting, and that he could occasionally lift and carry up to
8470 ORN v. ASTRUE
ten pounds. Similarly, Dr. Nguyen’s questionnaire dated one
year later reported no limitations in Orn’s ability in fine
manipulations with fingers and hands or in reaching. It
described Orn as able to sit or stand for one hour in a compet-
itive work environment. See Smolen v. Chater, 80 F.3d 1273,
1288 (9th Cir. 1996) (stating that ALJ has a duty to “conduct
an appropriate inquiry” if the ALJ determines that it is neces-
sary to know the basis of the treating physician’s opinion).
The ALJ’s second reason for rejecting the treating physi-
cians’ opinions was lack of objective support. After describ-
ing Dr. Doerning’s assessment of Orn’s limitations, the ALJ
stated that “there is no objective evidence of decreased range
of motion or neurological deficits to support such severe limi-
tations in standing and walking.” The ALJ’s statement is cor-
rect as far as it goes, but it does not warrant the rejection of
Dr. Doerning’s opinion. Dr. Doerning never claimed that “de-
creased range of motion” or “neurological deficits” caused
Orn’s limitations in standing and walking. Rather, Dr. Doern-
ing indicated that Orn’s ability to work was limited by his res-
piratory conditions.
[9] Dr. Doerning diagnosed Orn with “asthma and severe
obstructive pulmonary disease” and reported that Orn’s
“symptoms and functional limitations [were] reasonably con-
sistent with” the impairments described in his evaluation. The
record provides voluminous support for Dr. Doerning’s opin-
ion that Orn’s respiratory diseases adversely affected his abil-
ity to work. Orn stopped working after suffering an asthma
attack. His medical records contain physical examinations
which reveal wheezing and other respiratory abnormalities.
He has abnormal pulmonary functional tests. Orn takes medi-
cations for his respiratory diseases and, since 2003, requires
continuous supplemental oxygen. He has been hospitalized
twice in four years for respiratory problems. The ALJ’s rea-
son for rejecting Dr. Doerning’s opinion — that the record did
not contain evidence of “decreased range of motion” or “neu-
rological deficits” — is not “legitimate because it is not
ORN v. ASTRUE 8471
responsive to Dr. Doerning’s opinion based on Orn’s respira-
tory problems. Compare Magallanes, 881 F.2d at 751-52
(upholding rejection of treating physician’s opinion that
claimant was “disabled” when it was contradicted by the
opinions of four other physicians, EMG studies, and other
medical tests).
Similarly, the ALJ stated that there was “no clinical evi-
dence” to support the sitting and standing limitations assessed
by Dr. Nguyen. The ALJ then described a host of other condi-
tions for which Orn had not been diagnosed, including “disc
herniation, stenosis or nerve root compression.” Missing from
the ALJ’s list is any mention of Orn’s respiratory disorders,
obesity, and diabetes, which Dr. Nguyen cited as causing
Orn’s limitations and which are amply supported in the
record.
[10] An ALJ may not exclude a physician’s testimony for
a lack of objective evidence of impairments not referenced by
the physician. Rather, an ALJ must evaluate the physician’s
assessment using the grounds on which it is based. The ALJ
thus erred in rejecting the opinions of Drs. Doerning and
Nguyen. See Andrews, 53 F.3d at 1043.
B. Orn’s Testimony
Orn also argues that the ALJ erred in discrediting his testi-
mony. Orn testified that his impairments included fatigue,
shortness of breath, difficulty with concentration, and the fre-
quent need for medical treatment. The ALJ excluded those
impairments in determining Orn’s RFC. The ALJ concluded
that Orn’s testimony describing his “fatigue, shortness of
breath and dysfunction” was “not totally credible.”
[11] An ALJ is not “required to believe every allegation of
disabling pain” or other non-exertional impairment. See Fair
v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). However, to dis-
credit a claimant’s testimony when a medical impairment has
8472 ORN v. ASTRUE
been established, the ALJ must provide “ ‘specific, cogent
reasons for the disbelief.’ ” Morgan, 169 F.3d at 599 (quoting
Lester, 81 F.3d at 834). The ALJ must “cit[e] the reasons why
the [claimant’s] testimony is unpersuasive.” Id. Where, as
here, the ALJ did not find “affirmative evidence” that the
claimant was a malingerer, those “reasons for rejecting the
claimant’s testimony must be clear and convincing.” Id.
[12] Social Security Administration rulings specify the
proper bases for rejection of a claimant’s testimony. See
S.S.R. 02-1p (Cum. Ed. 2002), available at Policy Interpreta-
tion Ruling Titles II and XVI: Evaluation of Obesity, 67 Fed.
Reg. 57,859-02 (Sept. 12, 2002); S.S.R. 96-7p (Cum. Ed.
1996), available at 61 Fed. Reg. 34,483-01 (July 2, 1996). An
ALJ’s decision to reject a claimant’s testimony cannot be sup-
ported by reasons that do not comport with the agency’s rules.
See 67 Fed. Reg. at 57860 (“Although Social Security Rulings
do not have the same force and effect as the statute or regula-
tions, they are binding on all components of the Social Secur-
ity Administration, . . . and are to be relied upon as precedents
in adjudicating cases.”); see Daniels v. Apfel, 154 F.3d 1129,
1131 (10th Cir. 1998) (concluding that ALJ’s decision at step
three of the disability determination was contrary to agency
regulations and rulings and therefore warranted remand). Fac-
tors that an ALJ may consider in weighing a claimant’s credi-
bility include reputation for truthfulness, inconsistencies in
testimony or between testimony and conduct, daily activities,
and “unexplained, or inadequately explained, failure to seek
treatment or follow a prescribed course of treatment.” Fair,
885 F.2d at 603; see also Thomas, 278 F.3d at 958-59.
[13] The ALJ gave four reasons for rejecting Orn’s testi-
mony. Each of these reasons is improper under Social Secur-
ity Rulings, our case law, or both.
1. Failure to Lose Weight and Credibility
First, the ALJ rejected Orn’s testimony because he had
failed to lose weight. The ALJ wrote:
ORN v. ASTRUE 8473
[A]lthough the claimant testified his treating physi-
cian has not advised him to diet, the medical record
indicates he was given an 1800 calorie diabetic diet
to follow. (Exhibit 8F, page 14). However, the
claimant’s weight remains in excess of 300 pounds.
It may be that some of claimant’s restrictions and
symptoms are aggravated by excess weight. There is
no indication that the claimant has maintained a
weight loss program to reduce his weight and pro-
mote better health, which detracts from his credibil-
ity. And is non compliance with his doctor’s
instructions.
In using Orn’s failure to lose weight as a basis for denying
benefits, and in concluding that this failure “detracts from his
credibility,” the ALJ both ignored a Social Security Ruling
and misapplied our case law.
a. Failure to Lose Weight
In September 2002, the Secretary issued a new ruling spe-
cifically addressing obesity. In relevant part, the ruling pro-
vides:
Treatment for obesity is often unsuccessful. Even
if treatment results in weight loss at first, weight is
often regained, despite the efforts of the individual to
maintain the loss.
***
Obesity is a disease that requires treatment,
although in most people the effect of treatment is
limited. . . .
A common misconception is that the goal of treat-
ment is to reduce weight to a “normal” level. Actu-
ally, the goal of realistic medical treatment for
8474 ORN v. ASTRUE
obesity is only to reduce weight by a reasonable
amount that will improve health and quality of life.
People with extreme obesity, even with treatment,
will generally continue to have obesity. Despite
short-term progress, most treatments for obesity do
not have a high success rate.
***
Before failure to follow prescribed treatment for
obesity can become an issue in a case, we must first
find that the individual is disabled because of obesity
or a combination of obesity and another impair-
ment(s). Our regulations at 20 CFR 404.1530 and
416.930 provide that, in order to get benefits, an
individual must follow treatment prescribed by his or
her physician if the treatment can restore the ability
to work, unless the individual has an acceptable rea-
son for failing to follow the prescribed treatment.
We will rarely use “failure to follow prescribed treat-
ment” for obesity to deny or cease benefits.
***
When a treating source has prescribed treatment
for obesity, the treatment must clearly be expected to
improve the impairment to the extent that the person
will not be disabled. . . . [T]he goals of treatment for
obesity are generally modest, and treatment is often
ineffective. Therefore, we will not find failure to fol-
low prescribed treatment unless there is clear evi-
dence that treatment would be successful.
S.S.R. 02-1p at 2, 8-9, 67 Fed. Reg. at 57,861-64.
[14] At the time in question Orn had not been found dis-
abled, so Social Security Ruling 02-1p precludes the ALJ
from considering the effect of any failure to follow treatment
ORN v. ASTRUE 8475
for obesity. Id. at 9. In addition, there is no evidence either
that Orn was directed to lose weight as part of a prescribed
treatment, or “clear evidence that treatment would be success-
ful.” Id. The only evidence of a diet as prescribed treatment
was a single sheet of paper from Orn’s hospital records enti-
tled “Patient Discharge Instructions,” cited by the ALJ as
Exhibit 8F. There are five sections to the sheet: “Doctor,”
“Diet,” “Activity,” “Medications,” and “Special Instructions.”
Under “Doctor,” Dr. Nguyen is named. Under “Diet,” “1800
ADA” is written, and the “Yes” blank following “Diet Copy
to Patient” is checked. Under “Activity,” the “As tolerated”
blank is checked. Under “Medications,” “continue all medica-
tions prior to admissions” is written, followed by four sepa-
rate medications and their dosages. Under “Special
Instructions,” “Oxygen Nasal Cannula at 2 liters/min” is writ-
ten. The sheet is signed by Registered Nurse “M. Williams,”
and by Orn. The entries on the sheet appear to be in the hand-
writing of Williams.
This single sheet with the notation “1800 ADA” can hardly
be described as a prescribed treatment. “Prescribed treatment”
is a term of art. According to the Social Security Administra-
tion’s 2002 ruling on obesity, “The treatment must be pre-
scribed by a treating source, . . . not simply recommended. A
treating source’s statement that an individual ‘should’ lose
weight or has ‘been advised’ to get more exercise is not pre-
scribed treatment.” Id. at 9. Orn’s own testimony exemplifies
the distinction. At his second hearing he testified that he had
not been “prescribed” a diet, saying instead that he remem-
bered the diet being described to him in the hospital.
Finally, even if the patient discharge instruction sheet were
a prescribed treatment, a finding of a “failure to follow pre-
scribed treatment” would be inappropriate. There is nothing in
the record suggesting that there was any chance of such a pre-
scription succeeding in eliminating or ameliorating Orn’s obe-
sity, let alone “clear evidence” that the treatment would be
successful. See id.
8476 ORN v. ASTRUE
b. Credibility
The ALJ concluded that Orn’s failure to follow the 1800
calorie-per-day diet indicated on the “Patient Discharge
Instructions” “detract[ed] from his credibility.” In so conclud-
ing, the ALJ misapplied our case law. In some circumstances,
a failure to seek treatment or a failure to follow a prescribed
treatment is properly used as evidence supporting a conclu-
sion that the claimant is not credible in describing his or her
symptoms. The most common such circumstance is a claim-
ant’s complaint about disabling pain that cannot be objec-
tively ascertained.
[15] Our case law is clear that if a claimant complains
about disabling pain but fails to seek treatment, or fails to fol-
low prescribed treatment, for the pain, an ALJ may use such
failure as a basis for finding the complaint unjustified or exag-
gerated. See, e.g., Fair, 885 F.2d at 603. In the case of a com-
plaint of pain, such failure may be probative of credibility,
because a person’s normal reaction is to seek relief from pain,
and because modern medicine is often successful in providing
some relief. But in the case of impairments where the stimu-
lus to seek relief is less pronounced, and where medical treat-
ment is very unlikely to be successful, the approach to
credibility makes little sense. This second case is probably
best exemplified by a claimant whose obesity adversely
affects his or her health and activities. See S.S.R. 02-1p at 9
(defining “prescribed treatment” narrowly and stating that
failure to follow treatment for obesity will “rarely” affect dis-
ability determinations). Thus, the failure to follow treatment
for obesity tells us little or nothing about a claimant’s credi-
bility. In the case before us, there is no reason to conclude
from Orn’s failure to adhere to an 1800 calorie-per-day diet
that he is not telling the truth about his medical problems that
are exacerbated by his obesity.
2. “Gaps” in Medical Treatment
[16] Second, the ALJ stated that “large gaps in the claim-
ant’s medical treatment . . . suggest[ ] that [Orn’s] symptoms
ORN v. ASTRUE 8477
were not especially troublesome.” Orn’s failure to receive
medical treatment during the period that he had no medical
insurance cannot support an adverse credibility finding. We
have held that an “unexplained, or inadequately explained,
failure to seek treatment” may be the basis for an adverse
credibility finding unless one of a “number of good reasons
for not doing so” applies. Fair, 885 F.2d at 603. But,
“[d]isability benefits may not be denied because of the claim-
ant’s failure to obtain treatment he cannot obtain for lack of
funds.” Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995).
Here, Orn explained in his testimony that he would have
liked to have seen his doctors more often, but was unable to
do so because he “can’t afford it.” The ALJ did not suggest
that Orn’s proffered reason was “not believable.” Id.; see also
S.S.R. 96-7p at 7-8 (stating that an “adjudicator must not
draw any inferences about an individual’s symptoms and their
functional effects from a failure to seek or pursue regular
medical treatment without first considering any explanations
that the individual may provide, or other information in the
case record, that may explain infrequent or irregular medical
visits or failure to seek medical treatment” including inability
to pay, whether “[t]he individual’s daily activities may be
structured so as to minimize symptoms to a tolerable level or
eliminate them entirely,” and whether medication may relieve
symptoms).
Flaten v. Secretary of Health & Human Services, 44 F.3d
1453 (9th Cir. 1995), cited by the Commissioner, is inapposite
in these circumstances. In that case we upheld an adverse
credibility determination for failure to seek treatment despite
Flaten’s alleged inability to pay. Id. at 1464. We determined
that rejection of Flaten’s back pain testimony was appropriate
because during the time Flaten alleged she was unable to
afford treatment she had received other medical care and had
failed to mention her back pain. Id. By contrast, Orn did not
see physicians during the time he could not afford medical
8478 ORN v. ASTRUE
treatment and, unlike Flaten, Orn sought treatment for his
symptoms when he was able to go to the doctor.
3. Daily Activities
Third, the ALJ rejected Orn’s testimony because his activi-
ties of “read[ing], watch[ing] television and color[ing] in col-
oring books” “indicate that he is more functional than
alleged.” “This court has repeatedly asserted that the mere
fact that a plaintiff has carried on certain daily activities . . .
does not in any way detract from her credibility as to her
overall disability.” Vertigan v. Halter, 260 F.3d 1044, 1050
(9th Cir. 2001). Neither of the two grounds for using daily
activities to form the basis of an adverse credibility determi-
nation are present in Orn’s case. First, as he described them,
Orn’s activities do not contradict his other testimony. See
Fair, 885 F.2d at 603. Second, Orn’s activities do not meet
the threshold for transferable work skills, the second ground
for using daily activities in credibility determinations. Id.
In Fair, we wrote that daily activities may be grounds for
an adverse credibility finding “if a claimant is able to spend
a substantial part of his day engaged in pursuits involving the
performance of physical functions that are transferable to a
work setting.” 885 F.2d at 603 (emphasis omitted) (emphasis
omitted); see also Burch, 400 F.3d at 681 (stating that adverse
credibility finding based on activities may be proper “if a
claimant engages in numerous daily activities involving skills
that could be transferred to the workplace”). Here, there is
neither evidence to support that Orn’s activities were “trans-
ferable” to a work setting nor proof that Orn spent a “substan-
tial” part of his day engaged in transferable skills. See Fair,
885 F.2d at 603. The ALJ must make “specific findings relat-
ing to [the daily] activities” and their transferability to con-
clude that a claimant’s daily activities warrant an adverse
credibility determination. Burch, 400 F.3d at 681.
[17] We agree with Orn that reading, watching television,
and coloring in coloring books are activities that are so unde-
ORN v. ASTRUE 8479
manding that they cannot be said to bear a meaningful rela-
tionship to the activities of the workplace. See Fair, 885 F.2d
at 603 (“The Social Security Act does not require that claim-
ants be utterly incapacitated to be eligible for benefits, and
many home activities are not easily transferable to what may
be the more grueling environment of the workplace, where it
might be impossible to periodically rest or take medication.”
(citations omitted)). In oral argument before this court, the
Commissioner confirmed that a surveillance system monitor
is a security position that requires sustained concentration and
attention, as well as the ability to act immediately in emergen-
cies. The ALJ’s conclusion that because Orn sometimes reads,
watches television, and colors in coloring books he has “trans-
ferable” skills to be a surveillance system monitor is, to put
it charitably, not supported by substantial evidence.
4. ALJ’s Personal Observations
[18] Finally, the ALJ rejected Orn’s testimony, including
his claims of fatigue and difficulty concentrating, because Orn
“was able to testify in a responsive manner without any
noticeable problems with memory or thought content.” The
ALJ’s observations of a claimant’s functioning may not form
the sole basis for discrediting a person’s testimony. See S.S.R.
96-7p at 8 (“[T]he adjudicator is not free to accept or reject
the individual’s complaints solely on the basis of . . . personal
observations.”), available at 61 Fed. Reg. at 34,488. Instead,
an ALJ’s personal observations may be used only in “the
overall evaluation of the credibility of the individual’s state-
ments.” Id. Because the ALJ’s other reasons for rejecting
Orn’s testimony fail, the ALJ’s personal observations stand-
ing alone cannot support the adverse credibility finding.
C. Remand for Calculation of Benefits
When an “ALJ’s reasons for rejecting the claimant’s testi-
mony are legally insufficient and it is clear from the record
that the ALJ would be required to determine the claimant dis-
8480 ORN v. ASTRUE
abled if he had credited the claimant’s testimony,” we remand
for a calculation of benefits. Connett, 340 F.3d at 876; accord
McCartey, 298 F.3d at 1076-77. Such is the case here. The
Commissioner conceded at oral argument that if the opinions
of Orn’s treating physicians and Orn’s testimony are credited,
Orn has established that he is disabled. We reach this same
conclusion, even without relying on the Commissioner’s con-
cession. Because a remand for an award of benefits is appro-
priate, we do not reach Orn’s alternative argument that
remand is warranted under Celaya. 332 F.3d at 1184 (remand-
ing where ALJ failed to consider claimant’s obesity in steps
four and five of the disability determination).
Conclusion
[19] The ALJ’s reasons for disregarding the opinions of
Orn’s two treating physicians and for disregarding Orn’s testi-
mony are legally insufficient. Once these opinions and this
testimony are credited, we are obliged to conclude that Orn is
disabled. We therefore reverse the decision of the district
court and remand with instructions to remand for calculation
of benefits.
REVERSED and REMANDED.