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Ortiz v. Berryhill

United States District Court, W.D. Washington, Tacoma

July 26, 2017

RABECA ORTIZ, Plaintiff,
NANCY A BERRYHILL, Acting Commissioner of Social Security, Defendant.


          David W. Christel United States Magistrate Judge

         Plaintiff Rabeca Ortiz filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of Defendant's denial of her application for supplemental security income (“SSI”). Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and Local Rule MJR 13, the parties have consented to have this matter heard by the undersigned Magistrate Judge. See Dkt. 8.

         After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) failed to properly consider the medical opinion evidence of non-examining physician Dr. Guillermo Rubio, M.D, and examining physicians Drs. Christopher Nelson, Ph.D and Richard G. Peterson, Ph.D. Had the ALJ properly considered their opinions, the residual functional capacity (“RFC”) assessment may have included additional limitations. Therefore, the ALJ's error is harmful. The Court orders the Commissioner's final decision be vacated in its entirety and this matter remanded pursuant to sentence four of 42 U.S.C. § 405(g) for a de novo hearing consistent with this Order.


         On May 17, 2013, Plaintiff filed an application for SSI, alleging disability as of January 5, 2011.[1] See Dkt. 11, Administrative Record (“AR”) 13. The application was denied upon initial administrative review and upon reconsideration. AR 13. Plaintiff filed a written request for a hearing on March 5, 2014. AR 13. ALJ Kimberly Boyce heard the matter on August 18, 2014 and again on June 17, 2015 for the purpose of obtaining additional vocational expert testimony. AR 31-62, 63-72. In a decision dated July 24, 2015, the ALJ determined Plaintiff to be not disabled. See AR 13-25. Plaintiff's request for review of the ALJ's decision was denied by the Appeals Council, making the ALJ's decision the final decision of the Commissioner. See AR 1- 8; 20 C.F.R. §§ 404.981, 416.1481.

         In Plaintiff's Opening Brief, she maintains the ALJ failed to: (I) properly weigh medical opinion evidence by (A) giving great weight to Dr. Rubio's opinion but failing to include all opined functional limitations in the RFC assessment and (B) providing legally insufficient reasons for rejecting the Drs. Nelson and Peterson's opinions; (II) provide clear and convincing reasons for rejecting Plaintiff's statements about the limiting effects of her conditions; and (III) establish the existence in significant numbers of jobs Plaintiff is able to perform at Step Five. See Dkt. 13 at 1.


         Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits if the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)).


         I. Whether the ALJ properly weighed the medical opinion evidence.

         Plaintiff contends the ALJ erred in her evaluation of the medical opinion evidence of non-examining physician Dr. Rubio and examining physicians Drs. Nelson and Peterson. Dkt. 13, 15. Defendant asserts the ALJ properly considered and weighed all medical opinion evidence and formulated an RFC finding that was consistent with the credible limitations. Dkt. 14.

         The ALJ must provide “clear and convincing” reasons for rejecting the uncontradicted opinion of either a treating or examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990)). When a treating or examining physician's opinion is contradicted, the opinion can be rejected “for specific and legitimate reasons that are supported by substantial evidence in the record.” Lester, 81 F.3d at 830-31 (citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995)); see also Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (“Substantial evidence means more than a mere scintilla but less than a preponderance. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”) (internal quotations omitted). The ALJ can accomplish this by “setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citing Magallanes, 881 F.2d at 751).

         A. Dr. Rubio

         Plaintiff maintains the ALJ erred when she gave great weight to Dr. Rubio's opinion, yet failed to include all his opined limitations in the RFC assessment. Dkt. 13, at 3-5; Dkt. 15 at 4-5. Defendant contends the ALJ ...

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