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Ortega v. Colvin

United States District Court, E.D. Washington

May 27, 2014

DAVID ORTEGA, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

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[Copyrighted Material Omitted]

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For David Ortega, Plaintiff: D James Tree, LEAD ATTORNEY, D James Tree Law Office, Yakima, WA.

For Carolyn W Colvin, Commissioner of Social Security Administration, Defendant: Pamela Jean DeRusha, LEAD ATTORNEY, U S Attorney's Office - SPO, Spokane, WA; Catherine Escobar, Social Security Administration - SEA, Seattle, WA.

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DECISION AND ORDER

VICTOR E. BIANCHINI, UNITED STATES MAGISTRATE JUDGE.

I. INTRODUCTION

In July of 2009, Plaintiff Daniel Ortega applied for Supplemental Security Income (" SSI" ) benefits under the Social Security Act. The Commissioner of Social Security denied the application.

Plaintiff, represented by D. James Tree, Esq., commenced this action seeking judicial review of the Commissioner's denial of benefits pursuant to 42 U.S.C. § § 405 (g) and 1383 (c)(3). The parties consented to the jurisdiction of a United States Magistrate Judge. (Docket No. 7).

On April 2, 2014, the Honorable Rosanna Malouf Peterson, Chief United States District Judge, referred this case to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and (B). (Docket No. 23).

II. BACKGROUND

The procedural history may be summarized as follows:

On July 29, 2009, Plaintiff applied for SSI benefits, alleging disability beginning May 28, 2007. (T at 21, 141-45).[1] The application was denied initially and Plaintiff requested a hearing before an Administrative Law Judge (" ALJ" ). On August 2, 2011, a hearing was held before ALJ James Sherry. (T at 37). Plaintiff appeared with an attorney and testified. (T at 42-62). The ALJ also received testimony from Thomas Polsin, a vocational expert. (T at 62-70).

On November 3, 2011, the ALJ issued a written decision denying the application for benefits and finding that Plaintiff was not disabled within the meaning of the Social Security Act. (T at 18-36). The ALJ's decision became the Commissioner's final decision on May 31, 2013, when the Social Security Appeals Council denied Plaintiff's request for review. (T at 1-8).

On July 29, 2013, Plaintiff, acting by and through his counsel, timely commenced this action by filing a Complaint in the United States District Court for the Eastern District of Washington. (Docket No. 5). The Commissioner interposed an Answer

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on December 6, 2013. (Docket No. 12).

Plaintiff filed a motion for summary judgment on February 18, 2014. (Docket No. 21). The Commissioner moved for summary judgment on March 31, 2014. (Docket No. 22). Plaintiff filed a reply memorandum of law on April 15, 2014. (Docket No. 24). As noted above, the parties consented to the jurisdiction of a Magistrate Judge. (Docket No. 7).

For the reasons set forth below, the Commissioner's motion is granted, Plaintiff's motion is denied, and this case is closed.

III. DISCUSSION

A. Sequential Evaluation Process

The Social Security Act (" the Act" ) defines disability as the " inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § § 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a plaintiff shall be determined to be under a disability only if any impairments are of such severity that a plaintiff is not only unable to do previous work but cannot, considering plaintiff's age, education and work experiences, engage in any other substantial work which exists in the national economy. 42 U.S.C. § § 423(d)(2)(A), 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).

The Commissioner has established a five-step sequential evaluation process for determining whether a person is disabled. 20 C.F.R. § § 404.1520, 416.920. Step one determines if the person is engaged in substantial gainful activities. If so, benefits are denied. 20 C.F.R. § § 404.1520(a)(4)(i), 416.920(a)(4)(i). If not, the decision maker proceeds to step two, which determines whether plaintiff has a medially ...


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