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Torres v. Colvin

United States District Court, N.D. New York

April 10, 2013

CAROLYN W. COLVIN, [1] Commissioner, Social Security Administration, Defendant

Page 173

For Luz Leida Ortiz Torres, Plaintiff: Louise Marie Tarantino, Albany, NY.

For Michael J. Astrue, Commissioner of Social Security, Defendant: Katrina M. Lederer, Suzanne M. Haynes, LEAD ATTORNEYS, Social Security Administration, Office of Regional General Counsel, Region II, New York, NY.


WILLIAM G. YOUNG, United States District Judge[2].

Page 174



The plaintiff, Luz Leida Ortiz Torres (" Ortiz" ), moves to reverse or remand the decision to deny her Supplemental Security Income (" SSI" ) benefits by the Commissioner of the Social Security Administration (the " Commissioner" ). Compl. 1, 4, ECF No. 1. Ortiz brings this action pursuant to 42 U.S.C. sections 405(g) and 1383(c). Id. at 1. Ortiz argues that the decision of the Administrative Law Judge (the " hearing officer" ) was not supported by substantial evidence, misapplied the Medical-Vocational Guidelines (the " Grid" ), and failed to provide a full and fair hearing. See Pl.'s Br. 16-25, ECF No. 13. The Commissioner filed a motion for an order affirming his decision. Comm'r's Br. Resp. Pl.'s Br. 1, 25, ECF No. 17.


Ortiz filed an application for SSI benefits on May 8, 2006. Admin. R. at 83. She alleged a disability beginning on August 18, 2004. Id. Ortiz's claim was denied by the Social Security Administration (" SSA" ) on February 5, 2007. Id. at 58. Ortiz filed a request for a hearing before a hearing officer on March 12, 2007. Id. at 62. The hearing took place on August 28, 2008. Id. at 21. The hearing officer denied Ortiz's claim on October 14, 2008. Id. at 20. That same day, Ortiz filed a request for an Appeals Council review. Id. at 53-56. The Appeals Council denied review of her claim on April 29, 2010. Id. at 1. Ortiz filed a timely appeal of the Commissioner's

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decision with this Court on June 4, 2010, pursuant to 42 U.S.C. section 1383(c) and 42 U.S.C. section 405(g). Compl. 1.


Ortiz was born in Puerto Rico in 1959. Admin. R. at 83, 251. She attended school until tenth grade. Id. at 106. Ortiz moved to New York around 1994. Id. at 406. Spanish is her primary language; she speaks and understands little to no English. Id. at 30, 100, 252. Ortiz worked as a machine operator in a factory in 1978 and 1979 but left that job when she became pregnant. Id. at 27-28, 101-02. She has occasionally worked as a babysitter and a house cleaner, but otherwise she primarily has been a homemaker. Id. at 252, 404. Ortiz suffers from degenerative disc disease, depression, hypertension, " alleged cardiac disease," diabetes, and has a history of kidney stones. Id. at 13-17.

A. Claimed Physical Impairments

1. Back Pain

Ortiz has complained to physicians about lower back pain. See, e.g., id. at 175, 311. Her treating physician, Dr. Hafeez Rehman (" Dr. Rehman" ) has prescribed pain medication to alleviate Ortiz's pain on several occasions, id. at 175, 181, 184, 185, 187, 191, as well as a Lidoderm patch, id. at 181, 336. Dr. Rehman, however, has noted that Ortiz often fails to take her prescribed pain medication. Id. at 185, 187, 350, 352, 356, 368.

On August 8, 2005, when Ortiz complained of lower back pain, Dr. Rehman noted degenerative joint disease with a disc protrusion at vertebra L5-S1. Id. at 181. On August 19, 2005, Ortiz went to the emergency room of a hospital complaining of severe lower back pain. Id. at 303. Physicians at the hospital diagnosed lumbago, told Ortiz to avoid heavy lifting, and gave her medication to alleviate the pain. Id. at 307, 311. On May 11, 2006, Ortiz told Dr. Rehman that she experienced pain throughout the right side of her body and that she could not lift her right arm. Id. at 160. Dr. Rehman performed an examination that revealed tenderness in the right deltoid area, diagnosed subdeltoid bursitis, and gave Ortiz a shoulder injection to relieve the pain. Id. at 161. A computed tomography scan (" CT scan" ) of Ortiz on September 15, 2006, showed " a moderate degree of degenerative disc changes and osteoarthritis of L5-S1 with a mild degree of disc bulging." Id. at 383-84. An x-ray on November 9, 2006, showed mild anterior wedging of the T8, T9, T10, and T11 vertebrae, with a fifteen to twenty percent " loss of anterior height resulting in a progressive kyphosis." [3] Id. at 248.

At a December 5, 2007, visit, Dr. Rehman examined Ortiz and noted tenderness in the lumbar-sacral spinal area. Id. at 354. He further noted that flexion and extension of Ortiz's spine was " very limited due to pain." Id. There was also a " flattening of [the] lumbar curve." Id. Dr. Rehman ordered an x-ray of Ortiz, which revealed a left kidney stone, degenerative joint disease, and osteoarthritis of L5-S1. Id. at 353-54. In April 2008, Ortiz complained of neck pain and headaches. Id. at 350. Dr. Rehman's physical examination did not reveal any new conditions, and no test results were outside normal limits. Id.

On a Physical Capacities Evaluation, Dr. Rehman opined that Ortiz could sit for eight hours, stand for six hours, and walk for five hours out of an eight-hour work day. Id. at 393. He further opined that Ortiz occasionally could lift or carry ten pounds and frequently could lift or carry less than ten pounds. Id. Dr. Rehman opined that Ortiz would experience pain

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upon lifting or carrying ten pounds or more. Id. Dr. Rehman further opined that Ortiz occasionally could reach, push, pull, and bilaterally use foot pedals. Id. Simple grasping and fine manipulation were not so limited. Id. Dr. Rehman opined that Ortiz could occasionally reach above shoulder level but said she ought never bend, stoop, squat, kneel, or crawl. Id. at 394. Finally, he opined that Ortiz could not work in extreme temperatures and humidity or around moving machinery, chemicals, dust, odors, fumes, and gases. Id. Otherwise, however, Ortiz could work around heights, noise, and vibration. Id.

On June 10, 2008, Dr. Jamshaid Minhas (" Dr. Minhas" ) examined Ortiz after Dr. Rehman referred Ortiz to him. Id. at 327-28. Dr. Minhas ordered an MRI of Ortiz's spine, which showed " L5-S1 mild degenerative disc disease with a moderate-sized broad-based, central disc protrusion, minimally eccentric to the right contacting the right S1 nerve root in the lateral recess without compression or displacement." Id. at 328. Dr. Minhas noted that this was " the only potential source, albeit subtle, for [Ortiz's] reported radiculopathy." Id. He further noted that there was " no significant nerve stenosis or nerve impingement at any other remaining levels." Id.

On January 31, 2007, disability examiner R. Thornton[4] (" Thornton" ) completed a Physical Residual Functional Capacity Assessment on Ortiz. Id. at 269-74. Thornton indicated that Ortiz occasionally could lift or carry twenty pounds, frequently could lift or carry ten pounds, could stand, walk, and sit for six hours in an eight-hour workday, and had an unlimited ability to push or pull. Id. at 270. Thornton stated that these conclusions came from the evidence in Ortiz's file.[5] Id. at 273.

2. Pancreatitis

Dr. Edward S. Orris (" Dr. Orris" ), a gastroenterologist, examined and treated Ortiz after Dr. Rehman's referral. Id. at 207-08. Dr. Orris had Ortiz undergo a magnetic resonance cholangiopancreatography and an endoscopic retrograde cholangiopancreatography in 2003. Id. The imaging studies revealed a large right renal cyst, id. at 234, and normal pancreatic ducts, id. at 242. A CT scan in February 2004 revealed chronic pancreatitis and a pancreatic pseudocyst. Id. at 204. Attempts at draining the pseudocyst endoscopically were initially unsuccessful. See id. at 202, 235-36, 238-41, 299. On March 23, 2005, Ortiz had a cholecystectomy and a pancreatic cyst gastrostomy performed surgically, which successfully drained the pancreatic cyst. Id. at 299. Dr. Orris has noted chronic pancreatitis in Ortiz and that Ortiz's mother died of pancreatic cancer. Id. at 199.

3. Kidney Stones

Dr. Bipin G. Patel (" Dr. Patel" ), a nephrologist, examined and treated Ortiz from 2006 until 2008. See id. at 408-71. Dr. Patel diagnosed Ortiz with kidney stones on October 17, 2006. Id. at 443. A June 5, 2007, ultrasound of Ortiz's kidneys revealed " mild central collecting system dilatation on the right" kidney and a seven-millimeter calculus on the left kidney. Id. at 370. A December 14, 2007, ultrasound of Ortiz's kidneys revealed that " right and left renal artery flow velocities [were] within normal limits with no evidence of stenosis" and that both kidneys

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were within normal size limits. Id. at 458. A third ultrasound on July 8, 2008, showed a non-obstructing stone on the left kidney. Id. at 345. Dr. Patel has noted that Ortiz missed several appointments. See, e.g., id. at 410, 424, 427, 430, 431, 434, 441, 446.

4. Cardiac Health

A February 15, 2005, examination of Ortiz's heart showed normal heart sounds and no gallops or murmurs. Id. at 294. A February 16, 2005, electrocardiogram report showed " normal global left ventricular systolic function with mild concentric left ventricular hypertrophy." Id. at 293. A February 27, 2007, x-ray revealed " no radiographic evidence of acute cardiopulmonary disease." Id. at 485. In January 2008, Dr. Patel ordered a twenty-four-hour Holter monitor, which showed unremarkable results and " no significant ventricular arrythmia or atrial arrythmia." Id. at 457.

B. Mental Health

1. Treating Physicians

On October 17, 2006, Dr. Nagaraj Jajoor (" Dr. Jajoor" ), a psychiatrist, assessed Ortiz's mental health. Id. at 406-07. Dr. Jajoor noted complaints and symptoms of depression, including poor sleep, poor appetite, difficulty being in social situations, difficulty concentrating, and anxiety. Id. Ortiz reported hearing loud noises and feelings of anxiousness, although she denied having any suicidal thoughts. Id. at 406. Ortiz stated she had previously been treated for depression when she was eighteen or nineteen, with suicidal ideation at that time. Id. Ortiz also reported flashbacks to when she was briefly abducted as a young child. Id. at 406-07. Dr. Jajoor examined Ortiz and noted that Ortiz was cooperative, had normal behavior, good eye contact, clear speech, full orientation, no hallucinations or delusions, a depressed affect, intact memory, and average intelligence. Id. at 407. Dr. Jajoor ultimately diagnosed Ortiz with dysthymic disorder[6] and assessed a Global Assessment of Functioning (" GAF" ) score of 45.[7] Id. at 407.

On February 1, 2007, Dr. Fabio Urresta (" Dr. Urresta" ), another psychiatrist, also assessed Ortiz's mental health. Id. at 403-05. Ortiz reported feeling headaches, tension, visual and auditory hallucinations, and depression, but no suicidal or homicidal ideations. Id. at 403-04. Ortiz stated that she had suffered from a depressed mood, decreased appetite, sleep problems, low energy, poor concentration, and low self-esteem. Id. at 403. She stated that she had attempted suicide once as a teenager. Id. On examination, Dr. Urresta noted that Ortiz's psychomotor activity was slow and that her eye contact was fair. Id. at 404. He also noted that Ortiz's mood was ...

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