Jerry Orren v. Kilolo Kijakazi

NOT FOR PUBLICATION
FILED
UNITED STATES COURT OF APPEALS
DEC 14 2021
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JERRY ORREN, No. 21-35006
Plaintiff-Appellant, D.C. No.
3:19-cv-02080-BR
v.
KILOLO KIJAKAZI, Acting Commissioner MEMORANDUM*
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Hon. Anna Brown, District Judge, Presiding
Submitted December 9, 2021**
San Francisco, California
Before: MURGUIA, Chief Judge, IKUTA, and VANDYKE, Circuit Judges.
Jerry Orren appeals the district court’s denial of an application for
supplemental social security income and disability insurance benefits under Title
XVI of the Social Security Act. “We review a district court’s judgment upholding
the denial of social security benefits de novo” and “set aside a denial of benefits only
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
if it is not supported by substantial evidence or is based on legal error.” Bray v.
Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (citations omitted).
We have jurisdiction under 28 U.S.C. § 1291, and affirm.
To establish a disability for purposes of the Social Security Act, a claimant
must prove that he is unable “to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment which … has lasted
or can be expected to last for a continuous period of not less than 12 months.”
42 U.S.C. § 423(d)(1)(A). “In order to determine whether a claimant meets this
definition, the ALJ employs a five-step sequential evaluation.” Molina v. Astrue,
674 F.3d 1104, 1110 (9th Cir. 2012) (citations omitted), superseded on other
grounds by 20 C.F.R. § 404.1502(a).
In this case, at step five1 the ALJ found Orren was not disabled because he
was capable of performing jobs in the national economy such as mail clerk, office
helper, or parking attendant. The ALJ discounted Orren’s testimony that he cannot
stand for longer periods of time, cannot walk for more than five minutes, cannot sit
because his back often hurts, and that his knees often give out and dislocate.
Similarly, the ALJ discounted the medical opinion of Dr. Clinton, Orren’s treating
physician, which stated that Orren could stand for only five minutes at a time, could
only sit for fifteen minutes at a time, could sit for a total of less than two hours in a
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The ALJ also addressed Orren’s carpal tunnel syndrome symptoms at step 3,
finding that after surgery Orren was able to use his hands effectively.
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workday, could stand for a total of less than two hours in a workday, and could
balance only occasionally on his own.
We cannot say the district court erred in affirming the ALJ. The ALJ provided
“specific, clear and convincing reasons” to reject Orren’s testimony about the
severity of his symptoms. See Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir.
2007). And the ALJ provided “clear and convincing” reasons to reject Dr. Clinton’s
opinion, which was contradicted by agency doctors. See Baxter v. Sullivan, 923 F.2d
1291, 1396 (9th Cir. 1991). We affirm for the following reasons.
First, both Orren’s symptom testimony and Dr. Clinton’s medical opinion
conflicted with objective medical evidence. See Rollins v. Massanari, 261 F.3d 853,
857 (9th Cir. 2001); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195
(9th Cir. 2004). For example, Orren testified about his inability to stand and walk
for longer periods due to knees that “give out and dislocate.” But his October 2017
X-rays were normal and showed no signs of dislocation. And during an October
2017 examination with Dr. Clinton, despite Orren complaining of some knee pain,
his knees exhibited a normal range of motion with no instability.
Orren also testified about his inability to stand, walk, or sit for long periods
due to a back that “hurts all the time” and hip pain. But his back exhibited full
strength and normal reflexes with only minor pain during a follow-up appointment
with Dr. Clinton, and X-rays of his back in 2015 and 2017 showed only mild to
moderate degenerative disc disease. Likewise, August 2018 X-rays of Orren’s hips
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and feet showed no evidence of abnormalities. The ALJ reasonably relied on this
evidence in discounting both Orren’s symptom testimony and Dr. Clinton’s medical
opinion.
As for Dr. Clinton, her own physical examination notes and diagnostic
imaging contradicted the medical opinion she provided the agency. In October 2017,
Dr. Clinton recorded no abnormalities in Orren’s knees and back, instead recording
that he exhibited a normal range of motion, strength, reflexes, and stability despite
Orren’s complaints of pain. Diagnostic imaging in October 2017 also showed
normal knees and only moderate degenerative changes to Orren’s lumbar, spine, and
hips. The ALJ reasonably relied on this evidence in discounting Dr. Clinton’s
medical opinion.
The ALJ’s decision to discount Dr. Clinton’s opinion was supported by other
evidence in the record. In October 2017 Dr. Clinton advised Orren to lose weight
and “get back to walking” to improve his knee and back pain. And in April 2018—
a mere five months before her agency opinion—Dr. Clinton advised Orren to “do
gardening and walk for exercise.” Despite her different views for the agency opinion
in August 2018, Dr. Clinton conducted no full examinations of Orren after October
2017 and relied on no new diagnostic imaging to justify the extreme limitations in
activity she later endorsed.2
2
An MRI in September 2018 showed negative change in Orren’s knees, but that
scan occurred after Dr. Clinton provided her opinion.
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Each of these facts supports the ALJ’s decision to give both Orren’s testimony
and Dr. Clinton’s opinion little weight and determine that objective medical
evidence did not support the extreme degree of standing and walking restrictions
they proposed.3
Second, in addition to the contradictory evidence outlined above, Dr.
Clinton’s medical opinion was contradicted by the opinions of agency doctors. See
Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008); Bayliss v. Barnhart, 427
F.3d 1211, 1216 (9th Cir. 2005). Drs. Kehrli and Basham, non-examining agency
physicians, concluded that Orren could perform light work. Although these
physicians only reviewed the medical records, their conclusion can serve as a
“legitimate reason for rejecting a treating or examining physician’s opinion … when
it is consistent with other independent evidence in the record.” Tonapetyan v.
Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (citation omitted). The ALJ gave greater
weight to the opinions of Drs. Kehrli and Basham because they based their opinions
on the objective medical evidence in Orren’s record, whereas Dr. Clinton based her
opinion primarily upon Orren’s complaints of pain. And Drs. Kehrli and Basham’s
conclusions are consistent with Dr. Clinton’s observations and examinations of
Orren. These are specific, clear, and convincing reasons to discount Dr. Clinton’s
3
Orren also argues the ALJ erred by discounting his need to use a cane. But Orren
does not indicate that a cane was prescribed or objectively medically necessary and
evidence of his daily activities undermines his position. On this point too, the ALJ
did not err. See Thomas v. Barnhart, 278 F.3d 947, 959–60 (9th Cir. 2002).
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opinion in favor of the agency doctors’ opinions. Thomas v. Barnhart, 278 F.3d
947, 957 (9th Cir. 2002); see also Ford v. Saul, 950 F.3d 1141, 1155 (9th Cir. 2020).
Third, substantial evidence supported the ALJ’s determination that Orren’s
testimony and Dr. Clinton’s medical opinion were undermined by objective
evidence that Orren’s back and knee conditions improved with conservative
treatment. Ford, 950 F.3d at 1153; Parra v. Astrue, 481 F.3d 742, 750–51 (9th Cir.
2007). The evidence shows that Orren exhibited a favorable response to
conservative treatments for back pain and knee pain, which contrasts with both
Orren’s testimony and Dr. Clinton’s medical opinion requesting extreme
accommodations that “limited [Orren] to work at less than sedentary exertional
level.” Orren started physical therapy for back and knee pain in January 2018. The
physical therapist recorded improvements in Orren’s activity tolerance and noted
that Orren was walking consistently. Likewise, Orren’s carpal-tunnel syndrome
symptoms improved after occupational therapy and previous surgeries, also
undermining Orren’s testimony. These results were consistent with Dr. Clinton’s
earlier recommendations of conservative treatment options. Therefore, the ALJ’s
decision to discount Dr. Clinton’s opinion was supported by other evidence in the
record.
A favorable response to treatment and inconsistent reporting of symptoms are
clear and convincing reasons for the ALJ to properly discount Orren’s testimony.
Tommasetti, 533 F.3d at 1039–40. Likewise, a favorable response to treatment that
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contradicts Dr. Clinton’s medical opinion is a clear and convincing reason to
discount her testimony. Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir. 1995).
The ALJ reasonably relied on these factors to discount Orren’s testimony and Dr.
Clinton’s opinion.
Fourth, substantial evidence supported the ALJ’s determination that objective
evidence of Orren’s daily activities also undermined both Orren’s description of his
symptoms’ prohibitive effect on his abilities and Dr. Clinton’s medical opinion. See
Rollins, 261 F.3d at 856–57; see also Ford, 950 F.3d at 1155
The ALJ reasonably concluded that “[Orren] is able to function quite well,”
because Orren often sat for long periods of time when watching television and
playing board games. The record established that Orren also spends up to an hour
every day preparing his meals, and another hour completing household chores like
making his bed, doing laundry, and washing dishes. Additionally, Orren leaves his
home multiple times a week to shop for groceries, attend church, and drive his car.
This conflicted with Orren’s testimony that he cannot sit, or stand, for longer periods
of time. These activities provided a specific, clear, and convincing reason to reject
the extreme limitations indicated by Orren and Dr. Clinton. See Rollins, 261 F.3d at856–57.
CONCLUSION
For the reasons expressed herein, we determine that the ALJ’s decision is free
from harmful error and supported by substantial evidence. Accordingly, we
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AFFIRM the district court and DENY Orren’s request for an immediate award of
disability benefits.
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