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Ortiz v. Commissioner of Social Security

United States District Court, S.D. New York

February 8, 2017



          SARAH NETBURN, United States Magistrate Judge

         Plaintiff Fortunado Ortiz, appearing pro se, brings this action pursuant to Section 205(g) of the Social Security Act (the “Act”), 42 U.S.C. § 405(g). He seeks judicial review of the final determination of the Commissioner of Social Security (the “Commissioner”) denying his application for Supplemental Security Income (“SSI”) benefits. The Commissioner moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Ortiz did not oppose the motion.

         The Administrative Law Judge's (”ALJ”) decision was based on substantial evidence and free of legal error. Accordingly, the Court GRANTS the Commissioner's motion for judgment on the pleadings, and the case is dismissed with prejudice.


         I. Evidence in the Administrative Record

         On December 20, 2011, Ortiz filed for SSI, alleging disability beginning on March 22, 2011, as a result of high blood pressure, high cholesterol, hepatitis C, and depression. The Social Security Administration denied his initial application, and Ortiz requested a hearing before an ALJ.

         A. Ortiz's Testimony at the ALJ Hearing

         On September 23, 2013, Ortiz testified before ALJ Moises Penalver with his attorney present. Ortiz was 56 years old and lived with his sister and nephew. He completed ninth grade and obtained a GED. Ortiz testified at the hearing that he had not worked on or off the books for the past fifteen years, though his SSI application indicated he had not worked since December 20, 2010.

         Ortiz was able to travel by himself to attend group therapy meetings and to visit his doctor. He could travel by public transportation, though he usually walked to his appointments and meetings. When he would go out for a walk, however, he would be forced to stop and rest every few blocks. Ortiz could not do household chores because he would be out of breath if he did them. Ortiz testified he was unable to stand for over an hour or to sweep a floor. He also noted that his shortness of breath was likely because of his high blood pressure, for which he took medication.

         Ortiz underwent treatment for hepatitis C beginning in December 2011 for about six or seven months. As a result of taking the medication for treating hepatitis C, Ortiz lost weight and did not want to be around people. He never resumed treatment after stopping treatment in June 2012.

         Ortiz additionally reported feeling depressed three to four days per week. He visited a psychiatrist once a month, attended group therapy for his depression about every two weeks for one hour, and took two kinds of antidepressants, noting that the medication kept him “a little relaxed.” Administrative Record (“AR”) 37 (ECF No. 19).

         B. Medical History

         1. Physician Assistant Samuel Shahidi

         Ortiz visited Physician Assistant (“PA”) Samuel Shahidi at Lincoln Medical Center from April 2011 to August 2013, after receiving a referral from his primary care physician for monitoring kidney stones. PA Shahidi's examination results were consistently normal. As of February 21, 2012, Ortiz reported feeling well and had no complaints of pain in his flank or abdomen.

         2. Dr. Michael Skelley

         Ortiz's first documented visit with Dr. Michael Skelley, a physician at Lincoln Medical Center's parasitology clinic, was on May 23, 2011. Ortiz tested positive for chronic hepatitis C. Dr. Skelley noted that Ortiz did not have any previous treatment for hepatitis C but his medical history included hypertension and high cholesterol. An examination yielded unremarkable results, with vital stable signs. Ortiz's follow-up appointments with Dr. Skelley in June 2011 and August 2011 did not show any changes to the May 2011 examination results. In November 2011, Ortiz presented with complaints of generalized pain. Dr. Skelley advised Ortiz that he would be prescribed two medications for the treatment of hepatitis C (Pegasys and Ribavirin); if he was able to tolerate those medications, he could begin Boceprevir[1] therapy in about a month. About a month later, Dr. Skelley reported that Ortiz was tolerating the medications well. Blood tests performed in January 2012 indicated that Ortiz's hepatitis C viral load (the amount of the hepatitis C virus in the blood) had decreased significantly, and that his liver function tests showed normal results.

         Test results from Ortiz's appointments with Dr. Skelley in February and March 2012 showed that the hepatitis C virus was “not detectable.” AR 360, 396. During an April 26, 2012 appointment, Dr. Skelley reported that Ortiz's hepatitis C viral load was once again undetectable, but that he had developed severe anemia. Dr. Skelley proscribed Procrit to treat his anemia. Ortiz's May 2012 blood tests showed abnormal results, but he denied fever or any discomfort, and reported no symptoms.

         Test results for a June 11, 2012 appointment showed that the hepatitis C virus was once again undetectable. By that date, Ortiz had completed Interferon[2] therapy and would complete Ribavirin and Boceprevir therapy by June 15, 2012. Ortiz was given a psychiatrist referral for his depression and advised to schedule a return appointment with Dr. Skelley in six months. Dr. Skelley's Treating Physician's Wellness Plan Report, also dated June 11, 2012, indicated that the hepatitis C virus was undetectable after starting treatment in December 2011, and, although Ortiz was “temporarily unemployable” because of severe fatigue due to anemia, he would be able to complete therapy by June 15, 2012. AR 318. Dr. Skelley later confirmed, via a handwritten note on this Report, that Ortiz was “ok” to return to work. Id.

         The last documented visit with Dr. Skelley was in December 2012. Ortiz's examination results were normal. His hepatitis C, after completing a 6-month treatment, was undetectable. According to Dr. Skelley, Ortiz was “clinically cured, ” and [n]o further treatment or evaluation is needed.” AR 382.

         3. FEGS Evaluation

         Ortiz underwent a physical and psychiatric evaluation by the Federation Employment and Guidance Service (“FEGS”), a nonprofit human service provider based in New York, on April 20-24, 2012. Ortiz informed Karen Perez, the evaluating social worker, that he had a history of depression and anxiety, but was not in psychiatric treatment at that time. His PHQ-9 score[3] was a 14, indicating “Moderate” depression. AR 338. Ortiz had traveled independently to the appointment and reported no other travel limitations. He also reported being able to perform several household and personal activities, including washing dishes and clothes, sweeping the floor, vacuuming, shopping for groceries, cooking meals, socializing, getting dressed, and grooming himself. Ortiz, however, indicated that he actually did not do any chores “due to no stable home” and that he spent “his day in the streets.” AR 339. Dr. Mohammad Shuja performed a physical examination as part of the evaluation. The examination results were mostly normal, except for hepatitis C that was under treatment, anemia, mild depression, and mild neutropenia (reduced white blood cell count). Blood testing showed abnormal results, and Ortiz was advised to visit his primary care physician. Dr. Shuja diagnosed anemia, hepatitis C, hypertension, and depressive disorder, but did not assess any work-related limitations.

         4. Dr. Suzanne Hirsch

         Ortiz first participated in group therapy for depression with Dr. Suzanne Hirsch, a Clinical Psychologist Specialist at Lincoln Medical Center, in September 2012. At his first session, Ortiz discussed his experiences with substance abuse group therapy, listened to other members, and was “able to disclose and relate appropriately.” AR 417. From September 2012 to January 2013, Dr. Hirsch reported that Ortiz presented “a stable mood at baseline” and discussed his issues with substance abuse, pain management, social withdrawal, and the supportive relationship he had with his sister. AR 419-22. In January 2013, Ortiz shared with the group that he was “generally doing fine” and even provided feedback to other members on managing one's mood. AR 424. Dr. Hirsch's notes for the March 2013 session stated that Ortiz was responsive to the supportive group process. AR 425.

         5. Dr. Saul Friedman

         Ortiz visited Lincoln Medical Center on July 10, 2013 for evaluation of a hernia. Dr. Saul Friedman's notes for that appointment showed Ortiz had been clinically cured of hepatitis C. Ortiz was described as “generally healthy, ” and his examination results were normal. AR 377.

         C. Treating Physician's ...

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