Ogans v. Commissioner of Social Security, No. 2:2015cv00347 - Document 27 (E.D. Wash. 2018)
Court Description: ORDER GRANTING PLAINTIFF'S SUMMARY JUDGMENT MOTION 22 AND DENYING DEFENDANT'S SUMMARY JUDGMENT MOTION 24 . Signed by Judge Salvador Mendoza, Jr. (VR, Courtroom Deputy)
Download PDF
<![CDATA[
Ogans v. Commissioner of Social Security Doc. 27 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 Mar 28, 2018 2 SEAN F. MCAVOY, CLERK UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 4 MARCUS OGANS, No. 2:15-CV-00347-SMJ 5 Plaintiff, 6 v. 7 8 COMMISSIONER OF SOCIAL SECURITY, ORDER GRANTING PLAINTIFF’S SUMMARY JUDGMENT MOTION AND DENYING DEFENDANT’S SUMMARY JUDGMENT MOTION Defendant. 9 10 11 Plaintiff Marcus Ogans appeals the Administrative Law Judge’s (ALJ) denial 12 of his application for Supplemental Security Income (SSI). He argues that the ALJ 13 improperly found his testimony and the testimony of two lay witnesses not credible 14 and improperly rejected the opinions of several medical sources. He also argues that 15 the vocational expert’s testimony about his past work was inconsistent with Social 16 Security regulations and that the ALJ’s hypothetical to the vocational expert did not 17 include all of his limitations. The ALJ did not err in rejecting Ogans’s symptom 18 testimony or the testimony of the two lay witnesses, or in considering most of the 19 medical evidence. However, because the ALJ’s determination to give little weight 20 to the opinion of Ogans’s treating physician Dr. Sarah Rogers is not supported by ORDER - 1 Dockets.Justia.com 1 substantial evidence, the ALJ’s decision must be reversed, and this case is remanded 2 for further proceedings. I. 3 BACKGROUND 1 4 Ogans applied for SSI benefits on March 5, 2013, alleging disability 5 beginning on May 21, 2009. At the time of his application, he was homeless and 6 had no source of financial support, and he had last worked in July 2008. AR 197. 7 He alleged that symptoms from depression, anxiety, post-traumatic stress disorder, 8 psychosis, and heart attack limited his ability to work. AR 240. Specifically, he 9 reported physical symptoms relating to pulmonary problems, difficulty being 10 around others and dealing with authority, and cognitive problems. AR 263–70. The 11 Commissioner denied his application on April 11, 2013, and on reconsideration on 12 June 20, 2013. AR 124–27, 135–37. Following a hearing held in January 2014, the 13 ALJ issued a decision on June 18, 2014, finding Ogans not disabled and denying 14 his application for benefits. Tr. 19–30. The Appeals Counsel denied review on 15 October 15, 2015. Tr. 6–8. II. 16 DISABILITY DETERMINATION 17 A “disability” is defined as the “inability to engage in any substantial gainful 18 activity by reason of any medically determinable physical or mental impairment 19 20 1 The facts are only briefly summarized. Detailed facts are contained in the administrative hearing transcript, the ALJ’s decision, and the parties’ briefs. ORDER - 2 1 which can be expected to result in death or which has lasted or can be expected to 2 last for a continuous period of not less than twelve months.” 42 U.S.C. §§ 3 423(d)(1)(A), 1382c(a)(3)(A). The decision-maker uses a five-step sequential 4 evaluation process to determine whether a claimant is disabled. 20 C.F.R. §§ 5 404.1520, 416.920. 6 Step one assesses whether the claimant is engaged in substantial gainful 7 activities. If he is, benefits are denied. 20 C.F.R. §§ 404.1520(b), 416.920(b). If he 8 is not, the decision-maker proceeds to step two. 9 Step two assesses whether the claimant has a medically severe impairment 10 or combination of impairments. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the 11 claimant does not, the disability claim is denied. If the claimant does, the evaluation 12 proceeds to the third step. 13 Step three compares the claimant's impairment with a number of listed 14 impairments acknowledged by the Commissioner to be so severe as to preclude 15 substantial gainful activity. 20 C.F.R. §§ 404.1520(d), 404 Subpt. P App. 1, 16 416.920(d). If the impairment meets or equals one of the listed impairments, the 17 claimant is conclusively presumed to be disabled. If the impairment does not, the 18 evaluation proceeds to the fourth step. 19 Step four assesses whether the impairment prevents the claimant from 20 performing work he has performed in the past by examining the claimant’s residual ORDER - 3 1 functional capacity. 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant is able 2 to perform his previous work, he is not disabled. If the claimant cannot perform 3 this work, the evaluation proceeds to the fifth step. 4 Step five, the final step, assesses whether the claimant can perform other 5 work in the national economy in view of his age, education, and work experience. 6 20 C.F.R. §§ 404.1520(f), 416.920(f); see Bowen v. Yuckert, 482 U.S. 137 (1987). 7 If the claimant can, the disability claim is denied. If the claimant cannot, the 8 disability claim is granted. 9 The burden of proof shifts during this sequential disability analysis. The 10 claimant has the initial burden of establishing a prima facie case of entitlement to 11 disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971). The 12 burden then shifts to the Commissioner to show 1) the claimant can perform other 13 substantial gainful activity, and 2) that a “significant number of jobs exist in the 14 national economy,” which the claimant can perform. Kail v. Heckler, 722 F.2d 15 1496, 1498 (9th Cir. 1984). A claimant is disabled only if his impairments are of 16 such severity that he is not only unable to do his previous work but cannot, 17 considering his age, education, and work experiences, engage in any other 18 substantial gainful work which exists in the national economy. 42 U.S.C. §§ 19 423(d)(2)(A), 1382c(a)(3)(B). 20 ORDER - 4 III. 1 ALJ FINDINGS 2 At step one, the ALJ found that Ogans has not engaged in substantial 3 gainful activity since March 5, 2013. AR 21. At step two, the ALJ found that the 4 following severe impairments: coronary artery disease with four stents, chronic 5 obstructive pulmonary disease, chronic low back pain, and antisocial personality 6 disorder. AR 21–22. At step three, the ALJ found that Ogans’s impairments do not 7 meet or medically equal the severity of any listed impairment. AR 23–24. 8 At step four, the ALJ found that Ogans has the residual functional capacity 9 to perform sedentary work “with normal breaks except he is limited to simple, 10 repetitive, routine tasks.” AR 24–25. The ALJ further concluded that Ogans is 11 able to take instructions from supervisors, can work independently, can have 12 contact with coworkers, and can have occasional contact with the public. AR 25. 13 In reaching this conclusion, the ALJ found Ogans’s allegations and symptom 14 testimony not credible. AR 26. The ALJ gave significant weight to the opinions of 15 medical consultants Drs. Diane Fligstein, and Jerry Gardner. AR 26–27. The ALJ 16 gave some weight to reviewing physician Dr. Neims’s review of medical 17 evidence, although the ALJ noted that the opinion is merely a recapitulation of the 18 medical evidence rather than a separate assessment of Ogans’s ability to function. 19 AR 27. The ALJ gave minimal weight to the opinions of evaluating psychologists 20 Drs. Scott Mabee and James Czysz, treating physician Dr. Sarah Rogers, clinical ORDER - 5 1 social worker Steve Herndon, and several other sources that the ALJ found were 2 not acceptable medical sources. AR 27–28. The ALJ gave no weight to the 3 opinion of medical consultant Dr. Dale Thuline. AR 27. Additionally, the ALJ 4 found that short statements provided by Ogans’s friends did not provide useful 5 information. AR 28. Based on this residual functional capacity determination, the 6 ALJ found that Ogans is unable to perform his past relevant work. AR 29. 7 At step five, the ALJ found that jobs exist in significant numbers in the 8 national economy that Ogans can perform. AR 29–30. The ALJ relied on the 9 vocational expert’s conclusion that a person with Ogans’s limitations could 10 perform the requirements of representative occupations including document 11 preparer, hand packer, and final assembler. AR 30. 12 IV. STANDARD OF REVIEW 13 The Court must uphold an ALJ’s determination that a claimant is not disabled 14 if the ALJ applied the proper legal standards and there is substantial evidence in the 15 record as a whole to support the decision. Molina v. Astrue, 674 F.3d 1104, 1110 16 (9th Cir. 2012) (citing Stone v. Heckler, 761 F.2d 530, 531 (9th Cir.1985)). 17 “Substantial evidence ‘means such relevant evidence as a reasonable mind might 18 accept as adequate to support a conclusion.’” Id. at 1110 (quoting Valentine v. 19 Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009)). This must be more 20 than a mere scintilla, but may be less than a preponderance. Id. at 1110–11 (citation ORDER - 6 1 omitted). Even where the evidence supports more than one rational interpretation, 2 the Court must uphold an ALJ’s decision if it is supported by inferences reasonably 3 drawn from the record. Id.; Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). V. 4 5 ANALYSIS Ogans challenges the ALJ’s residual functional capacity determination on 6 the basis that the ALJ improperly rejected his symptom testimony and the 7 testimony of two lay witnesses, and that the ALJ improperly evaluated the 8 medical evidence. Ogans also challenges the ALJ’s step five determination that 9 significant jobs exist that he is capable of performing on the basis that the 10 vocational expert’s testimony about his past work was inconsistent with Social 11 Security regulations and that the ALJ’s hypothetical to the vocational expert did 12 not include all of his limitations. The ALJ did not err in rejecting Ogans’s 13 symptom testimony or the testimony of the two lay witnesses. The ALJ also did 14 not err in weighing most of the medical opinions considered. However, the ALJ’s 15 determination to give little weight to the opinion of Ogans’s treating physician Dr. 16 Sarah Rogers is not supported by substantial evidence, and was therefore in error. 17 The ALJ properly relied on the vocational expert’s conclusions and gave an 18 appropriate hypothetical in her step-five analysis. 19 20 Because the ALJ improperly rejected Dr. Rogers’s opinion, the ALJ’s decision must be reversed and remanded for further proceedings. ORDER - 7 1 A. The ALJ did not err by discounting Ogans’s symptom testimony or the testimony of lay witnesses. 2 Ogans argues that the ALJ improperly rejected his symptom testimony and 3 the testimony of lay witnesses without providing clear and convincing reasons. ECF 4 No. 22 at 8–12. The Commissioner argues that the ALJ properly relied on objective 5 medical evidence, indications that Ogans may have exaggerated his symptoms, 6 Ogans’s continued heavy smoking, and Ogans’s daily activities to find Ogans’s 7 symptom testimony not credible. ECF No. 24 at 4–10. The Commissioner further 8 argues that the ALJ properly found that the lay witness testimony of Ogans’s 9 friends, Ramona Walker and Sylvia Tribble, did not provide useful information. 10 ECF No. 24 at 10–11. 11 Where a claimant presents objective medical evidence of impairments that 12 could reasonably produce the symptoms complained of, an ALJ may reject the 13 claimant’s testimony about the severity of her symptoms only for “specific, clear 14 and convincing reasons.” Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014). 15 An ALJ must make sufficiently specific findings “to permit the court to conclude 16 that the ALJ did not arbitrarily discredit [the] claimant’s testimony.” Tommasetti v. 17 Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (citations omitted). General findings 18 are insufficient. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). ALJs may 19 consider many factors in weighing a claimant’s credibility, including prior 20 inconsistent statements, unexplained failures to seek treatment, and the claimant’s ORDER - 8 1 daily activities, among others. Tommasetti, 533 F.3d at 1039. Courts may not 2 second-guess an ALJ’s findings that are supported by substantial evidence. Id. An 3 ALJ need only provide germane reasons to reject lay witness testimony. Greger v. 4 Barnhart, 464 F.3d 968, 972 (9th Cir. 2006). 5 The ALJ found that Ogans’s medically determinable impairments could 6 reasonably be expected to cause his alleged symptoms, but nevertheless concluded 7 that his “testimony concerning subjective complaints and limitations were not 8 convincing.” AR 26. Ogans does not point to any specific deficiencies in the 9 ALJ’s stated reasons for discounting his testimony; instead, he simply discusses 10 the legal standard governing an ALJ’s consideration of a claimant’s testimony and 11 makes the conclusory assertion that “the ALJ has not provided ‘clear and 12 convincing reasons’ for disregarding claimant’s testimony when the facts to which 13 she referred are taken in context.” ECF No. 22 at 12. In fact, the ALJ relied on 14 several specific, clear and convincing reasons, each of which is supported by 15 substantial evidence in the record, for rejecting Ogans’s symptom testimony. 16 In making her adverse credibility determination, the ALJ relied on the 17 following findings: First, the ALJ found that the medical record does not support 18 the level of physical impairment claimed by Ogans. AR 26. The ALJ noted that 19 examinations in March, October, and November 2013 showed normal cardiac 20 function and no symptoms. AR 26. Similarly, the ALJ noted that an October 2013 ORDER - 9 1 musculoskeletal evaluation showed normal ranges of motions and revealed no 2 problems, and a March 2013 neurological exam showed normal motor and 3 sensory test results. AR 26. Second, the ALJ found that Ogans’s continued, heavy 4 tobacco use suggests his pulmonary problems are less than alleged. AR 26. Third, 5 the ALJ found that the medical record does not support the severity of the mental 6 impairments Ogans alleges. AR 26. The ALJ noted that psychological exams in 7 2012 showed mostly normal behavior. AR 26. Fourth, the ALJ found that 8 evidence in the record suggested exaggeration, pointing to opinions from three 9 medical sources, Drs. Scott Mabee, Dan Neims, and Debra Brown, that they 10 suspected malingering. AR 26. Each of these findings is supported by the record, 11 and together these findings are a sufficient basis to discredit Ogans’s symptom 12 testimony. 13 The ALJ also discounted the opinions of lay witnesses Ramona Walker and 14 Sylvia Tribble. The ALJ noted that these witnesses stated that they had observed a 15 big change in Ogans since his last heart condition and that he was unable to 16 engage in activities he previously engaged in and appeared to be struggling. AR 17 28. But the ALJ concluded that these witness’ “short statements fail to provide 18 evidence of what [Ogans] can actually do[,] are more filled with sympathy than 19 facts[, and] do not provide information that is useful in determining the claimant’s 20 residual functional capacity.” AR 28. Ogans again does not explain how the ALJ ORDER - 10 1 failed to properly consider these witness’ testimony. ECF No. 22 at 12. The ALJ 2 gave adequate, germane reasons for finding that Walker and Tribble’s testimony 3 was unhelpful. Accordingly, the ALJ did not err by rejecting their testimony. 4 B. The ALJ properly considered most medical evidence, but improperly rejected the opinion of Ogans’s treating physician Dr. Sarah Rogers. 5 Ogans argues that the ALJ improperly discredited medical evidence 6 favorable to him. ECF No. 22 at 12–16. Specifically, Ogans appears to argue that 7 the ALJ improperly discounted the opinions of psychological evaluators, Drs. 8 Scott Mabee, and James Czysz, reviewing psychologist Dr. Melanie Edward 9 Mitchell, and treating physician Dr. Sarah Rogers. ECF No. 22 at 15–16. 10 In disability proceedings, “the opinion of a treating physician must be given 11 more weight than the opinion of an examining physician, and the opinion of an 12 examining physician must be afforded more weight than the opinion of a 13 reviewing physician.”Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th Cir. 2014). An 14 ALJ cannot reject a treating or examining physician’s opinion, even if it is 15 contradicted by another physician, without setting forth specific and legitimate 16 reasons supported by substantial evidence. Garrison v. Colvin, 759 F.3d 995, 1012 17 (9th Cir. 2014). 18 While the ALJ properly gave little weight to the opinions of Drs. Mabee 19 and Czysz, and did not consider the opinion of Dr. Edward Mitchell, the ALJ’s 20 ORDER - 11 1 reasons for rejecting Dr. Rogers’s opinion are not supported by substantial 2 evidence. 3 1. The ALJ did not err by giving little weight to the opinions of Drs. Scott Mabee and James Czysz 4 Dr. Mabee opined that Ogans was markedly limited in completing a normal 5 workday and workweek without interruption from psychologically-based 6 symptoms and in maintaining appropriate behavior in a work setting. AR 329–32. 7 Dr. Czysz opined that Ogans was markedly limited in his ability to (1) perform 8 activities within a schedule, maintain regular attendance, and be punctual; (2) be 9 aware of normal hazards and take appropriate precautions; (3) complete a normal 10 work day and work week without interruptions from psychologically based 11 symptoms; (4) maintain appropriate behavior in a work setting; and (5) set 12 realistic goals and plan independently. AR 339–42. The ALJ gave both of these 13 opinions little weight because they were based on only Ogans’s self-reported 14 symptoms. AR 27. Plaintiff does not directly refute the ALJ’s reasons for rejecting 15 these providers’ opinions and in fact provides no explanation of how the ALJ 16 improperly evaluated these opinions. ECF No. 22 at 15. This is a legitimate basis 17 for rejecting a medical opinion, see Tommasetti, 533 F.3d at 1041 (“An ALJ may 18 reject a treating physician's opinion if it is based to a large extent on a claimant's 19 self-reports that have been properly discounted as incredible.”), and it is supported 20 ORDER - 12 1 by substantial evidence. Accordingly, the ALJ did not err by giving little weight to 2 the opinions of Drs. Mabee and Czysz 3 2. The ALJ did not err by giving no weight to the opinion of Dr. Edwards Mitchell. 4 After reviewing the medical evidence, Dr. Edwards Mitchell concluded that 5 Ogans “appears unable to attain/sustain gainful employment due to mental health 6 impairments.” AR 349. The ALJ did not discuss Dr. Edwards Michell’s opinion. 7 Ogans suggests that this was error, although he does not articulate a reason. ECF 8 No. 22 at 16. Dr. Edwards Mitchell did not treat or examine Ogans, and her 9 opinion is very brief and does not contain analysis or connect her conclusion to 10 specific medical evidence. Moreover, her opinion on the ultimate question of 11 disability is not entitled to any weight. 20 C.F.R. § 416.927(d)(1). Accordingly, 12 the ALJ did not err by giving no weight to Dr. Edwards Mitchell’s opinion. 13 3. The ALJ erred in rejecting the opinion of Dr. Sarah Rogers. 14 Dr. Rogers was Ogans’s primary care provider from March 2013 through 15 the time of his application for benefits. AR 864. She explained that Ogans’s 16 medical conditions relating to disability include coronary artery disease, chronic 17 cough & shortness of breath, and depression/anxiety. AR 864. She opined that he 18 was limited in significant physical exertion due to his symptoms. AR 864. Ogans 19 appears to argue that the ALJ erred by discounting this opinion, although he does 20 not articulate why. ECF No. 22 at 16. ORDER - 13 1 The ALJ gave little weight to Dr. Rogers’s conclusions because they “seem 2 to be solely based on the claimant’s allegations” and “the doctor made no mention 3 of the claimant’s continuing to smoke cigarettes even though he had cardiac or 4 pulmonary complaints.” AR 28. This basis for rejecting Dr. Rogers’s opinion is 5 clearly unsupported. Dr. Rogers’s conclusions, while likely based in part on 6 Ogans’s subjective complaints, are expressly based on objective symptoms she 7 observed while treating Ogans. Dr. Rogers explained that Ogans had had two 8 heart attacks, including one while under her care in August 2013, which required 9 four stents to be placed in his Right Coronary Artery due to complete occlusion of 10 that vessel. She further explained that since that time, Ogans has had an episode of 11 chest pain, and she was working with his cardiologist to determine the cause of 12 Ogans’s chronic cough and shortness of breath. AR 864. 13 C. The ALJ did not err by accepting the vocational expert’s testimony. 14 Ogans argues that the vocational expert’s testimony about Ogans’s past 15 work was inconsistent with Social Security regulations because the vocational 16 expert stated that he thought certain jobs classified as SVP 3 (semi-skilled) were 17 actually SVP 2 (unskilled). ECF No. 22 at 17. Assuming this was error, it did not 18 affect the ALJ’s step five determination because the vocational expert and ALJ 19 concluded that Ogans was unable to perform any of his past work, and it had no 20 impact on the remainder of the vocational expert’s analysis. ORDER - 14 1 D. The ALJ’s hypothetical question to the vocational expert was proper. Ogans argues that the ALJ’s hypothetical did not consider all of Ogans’s 2 3 limitations. ECF No. 22 at 18–19. Specifically, Ogans argues that the hypothetical 4 should have included additional limitations that his attorney proposed to the 5 vocational expert on cross examination. ECF No. 22 at 18–19. But contrary to 6 Ogans’s argument, the vocational expert did not concede that medical evidence 7 supported these additional limitations, the vocational expert simply addressed the 8 impact of Ogans’s suggested limitations on his ability to be employed. Tr. 93–95. 9 Accordingly, the ALJ properly did not include the limitations in her hypothetical. 10 11 E. Remand Remand for immediate payment of benefits is appropriate if: (1) “the ALJ 12 has failed to provide legally sufficient reasons for rejecting evidence, whether 13 claimant testimony or medical opinion”; (2) “the record has been fully developed 14 and further administrative proceedings would serve no useful purpose”; and (3) “if 15 the improperly discredited evidence were credited as true, the ALJ would be 16 required to find the claimant disabled on remand.” Brown-Hunter v. Colvin, 806 17 F.3d 487, 495 (9th Cir. 2015) (quoting Garrison, 759 F.3d at 1020). Although the 18 ALJ erred by rejecting the opinion of Dr. Rogers, it is not clear from the record 19 that, crediting that opinion as true, the ALJ will be required to award benefits. 20 ORDER - 15 1 Accordingly, remand for immediate payment of benefits is not appropriate in this 2 case. VI. 3 CONCLUSION 4 For the reasons discussed, IT IS HEREBY ORDERED: 5 1. GRANTED. 6 7 2. The Commissioner’s Motion for Summary Judgment, ECF No. 24, is DENIED. 8 9 Plaintiff’s Motion for Summary Judgment, ECF No. 22, is 3. This matter is REMANDED to the Commissioner of Social Security 10 pursuant to 42 U.S.C. § 405(g) for further proceedings consistent with 11 this order. 12 4. JUDGMENT is to be entered in the Plaintiff’s favor. 13 5. The case shall be CLOSED. 14 IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and 15 16 provide copies to all counsel. DATED this 28th day of March 2018. 17 __________________________ SALVADOR MENDOZA, JR. United States District Judge 18 19 20 ORDER - 16
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
