United States District Court, S.D. New York
OPINION AND ORDER
NETBURN, United States Magistrate Judge
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.
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
Evidence in the Administrative Record
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.
Ortiz's Testimony at the ALJ Hearing
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.
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.
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.
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).
Physician Assistant Samuel Shahidi
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.
Dr. Michael Skelley
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 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
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.
results for a June 11, 2012 appointment showed that the
hepatitis C virus was once again undetectable. By that date,
Ortiz had completed Interferon 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
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.
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 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
Dr. Suzanne Hirsch
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.
Dr. Saul Friedman
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.
Treating Physician's ...