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Ortiviz v. Commissioner, Social Security Administration

United States District Court, D. Colorado

August 28, 2019



          Marcia S. Krieger Senior United States District Judge

         THIS MATTER comes before the Court on the Plaintiff's Complaint (# 1), the Plaintiff's Opening Brief (# 23), the Defendant's Response (# 24), and the Plaintiff's Reply (#25). For the following reasons, the Commissioner's decision is reversed, and the matter is remanded for further proceedings.


         The Court has jurisdiction over an appeal from a final decision of the Commissioner under 42 U.S.C. § 405(g).


         A. Procedural History

         Plaintiff Pamela Ortiviz (“Ms. Ortiviz”) seeks judicial review of a final decision by the Defendant Commissioner (“Commissioner”) denying both her claim for disability insurance benefits (“DIB”) and application for supplemental security income (“SSI”) under the Social Security Act. In February 2015, Ms. Ortiviz filed for DIB, claiming she became disabled as of February 1, 2009. (# 16-5 at 178; # 16-6 at 200). In April 2015, Ms. Ortiviz filed for SSI. (#16-5 at 180). Her initial application was denied, and she requested an administrative hearing. Following a hearing before an Administrative Law Judge (“ALJ”), Ms. Ortiviz received an unfavorable decision in August 2017 (“Decision”). (# 16-2 at 13-24). Ms. Ortiviz appealed that Decision to the Appeals Council. However, on June 23, 2018, the Appeals Council denied her Request for Review. (# 16-2 at 1). Ms. Ortiviz now appeals the final agency action to this Court.

         B. Factual Background

         The Court offers a brief summary of the facts here and elaborates as necessary in its discussion. Also, because the dispositive issue in this appeal concerns the weight given to medical source opinions as to Ms. Ortiviz's mental impairment, noting that there is no opinion from any treating source, the Court summarizes only the medical opinion evidence relevant to its decision.

         At the time of her alleged onset of disability, Ms. Ortiviz was 39 years old. (# 16-3 at 76). However, on the date of the administrative hearing before the ALJ, she was 47 years old. (# 16-2 at 36). Ms. Ortiviz left high school in the 11th grade, but she received her GED or High School Equivalency Certificate in 1997. (# 16-2 at 36). She was previously employed in customer service and general labor positions. (# 16-6 at 204, 479).

         In July 2015, Mary Ann Wharry, Psy.D., a State agency psychological consultant, reviewed Ms. Ortiviz's records related to her DIB claim at the initial agency level and completed a mental residual functional capacity assessment (“RFC”) and a psychiatric review technique (“PRT”)[1]. (# 16-3 at 88-89, 91-93). Specifically, Dr. Wharry reviewed Ms. Ortiviz's medical records from Parkview Medical Center, Pueblo Health Community Health Center, Spanish Peaks Behavioral Health Centers, and Denver Health Medical Center and noted Ms. Ortiviz's diagnoses of anxiety, depression and alcohol abuse and related mental health treatment. (# 16-3 at 89). Based on that review, Dr. Wharry opined that due to Ms. Ortiviz's “motivation” and “anxiety, ” she has moderate limitations in the following areas of functional abilities: concentration and persistence; social interactions; and adaptation capabilities. (# 16-3 at 91-93). Dr. Wharry concluded that Ms. Ortiviz

retains [the] mental ability to do work not involving significant complexity and judgment; can do work requiring up to 3 months time to learn techniques, acquire information and develop facility needed for an average job performance, can respond appropriately to supervision, coworkers if contact is not frequent or prolonged; must have minimal to no interaction with the general public; can deal with changes in a routine work setting.

(# 16-3 at 93)

         On August 9, 2016, Ms. Ortiviz saw Richard Madsen, Ph.D., a consulting examiner, for a psychological evaluation. (# 16-10 at 477-484). Dr. Madsen administered the Wechsler Adult Intelligence Scale-Fourth Edition test (to measure Ms. Ortiviz's intellectual functioning) and conducted a clinical interview. (# 16-10 at 477). Dr. Madsen observed Ms. Ortiviz's affect to be anxious, depressed, and tearful. (# 16-10 at 479). Ms. Ortiviz was able to recall the current date, but her thoughts “appear[ed] to be racing and she appears paranoid.” (# 16-10 at 479). Ms. Ortiviz received a “Full Scale IQ of 78, ” which is in the “borderline range of measured intelligence.” (# 16-10 at 480). In his report, under the heading “Review of Records, ” Dr. Madsen noted that Ms. Ortiviz's attorney had given him Ms. Ortiviz's medical “records from Pueblo Community Health Center indicating that [Ms. Ortiviz] was seen there for depression in February of 2015. [The records] also indicated that she has chronic pain. There were also progress notes from Spanish Peaks Mental Health Center/Health Solutions documenting her treatment for depression and PTSD.” (# 16-10 at 479). Based on his examination, Dr. Madsen diagnosed Ms. Ortiviz with the following: bipolar disorder; post-traumatic stress disorder (“PTSD”); panic disorder with agoraphobia; episodic alcohol abuse; borderline intellectual functioning; and a developmental learning disorder. (# 16-10 at 480). Dr. Madsen completed an RFC and opined that Ms. Ortiviz was: severely limited in the ability to understand and remember detailed instructions; severely limited in most areas of the ability to sustain concentration and persistence; ...

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