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Burke v. Berryhill

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

July 12, 2018

KATHLEEN BURKE, Plaintiff,
v.
NANCY A BERRYHILL, Deputy Commissioner of Social Security for Operations, Defendant.

          ORDER REVERSING AND REMANDING DEFENDANT'S DECISION TO DENY BENEFITS

          DAVID W. CHRISTEL UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Kathleen Burke filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of Defendant's denial of Plaintiff's application for disability insurance benefits (“DIB”). 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. 3.

         After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) erred in his assessment of medical opinion evidence from Dr. Shannon Ledesma, Ph.D. Had the ALJ properly considered Dr. Ledesma's opinion, the residual functional capacity (“RFC”) may have included additional limitations. The ALJ's error is therefore not harmless, and this matter is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the Deputy Commissioner of Social Security (“Commissioner”) for further proceedings consistent with this Order.

         FACTUAL AND PROCEDURAL HISTORY

         On August 15, 2011, Plaintiff filed an application for DIB, alleging disability as of February 1, 2011. See Dkt. 6, Administrative Record (“AR”) 17. The application was denied upon initial administrative review and on reconsideration. See AR 17. The Social Security Administration (“SSA”) has held two ALJ hearings and issued two ALJ decisions in this matter. ALJ Verrell Dethloff held the first hearing on October 17, 2012. AR 42-54. In a decision dated December 19, 2012, ALJ Dethloff determined Plaintiff to be not disabled. AR 14-41. Plaintiff appealed ALJ Dethloff's decision to the United States District Court for the Western District of Washington (“Court”), which affirmed ALJ Dethloff's decision. See AR 482-84, 487-90. Thereafter, Plaintiff appealed the Court's decision to the Ninth Circuit Court of Appeals, which reversed and remanded the matter to the Court with instructions to remand the ALJ's decision to the Commissioner. See AR 487-90. The Court subsequently remanded the case to the Commissioner for further consideration. AR 497-98.

         On remand, ALJ Tom L. Morris held the second hearing in this matter on March 23, 2017. AR 387-445. In a decision dated August 30, 2017, ALJ Morris found Plaintiff to be not disabled. AR 362-83. Plaintiff did not file written exceptions with the Appeals Council, making the August 30, 2017 decision the final decision of the Commissioner. 20 C.F.R. § 404.981, § 416.1481. Plaintiff now appeals ALJ Morris's August 30, 2017 decision.[1]

         In Plaintiff's Opening Brief, Plaintiff maintains the ALJ erred: (1) in his assessment of the medical opinion evidence; (2) by failing to fully and fairly develop the administrative record; and (3) by providing legally insufficient reasons to reject Plaintiff's subjective symptom testimony. Dkt. 10.

         STANDARD OF REVIEW

         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)).

         DISCUSSION

         I. Whether the ALJ properly considered medical opinion evidence from Dr. Ledesma.

         Plaintiff maintains the ALJ erred in his assessment of medical opinion evidence from examining physician, Dr. Ledesma. Dkt. 10, pp. 10-12.

         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. 1995) (citing Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990)); Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). 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); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). 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 v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)).

         Dr. Ledesma conducted a psychological evaluation of Plaintiff on October 31, 2011. AR 264-68. As part of her evaluation, Dr. Ledesma conducted a mental status examination of Plaintiff. AR ...


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