United States District Court, E.D. New York
MEMORANDUM AND ORDER
ROSLYNN R. MAUSKOPF, UNITED STATES DISTRICT JUDGE.
Luz Del Carmen Rojas (“Rojas”) brings this action
against defendant Carolyn Colvin, Acting Commissioner of the
Social Security Administration (the
“Commissioner”), pursuant to 42 U.S.C.
§§ 405(g), 1383(c)(3). Rojas seeks review of the
determination of an administrative law judge (ALJ) that she
is not entitled to Supplemental Security Income benefits
(“SSI”) under Title XVI of the Social Security
Act. The Commissioner has moved for judgment on the pleadings
pursuant to Federal Rule of Civil Procedure 12(c).
(Def.'s Mem. (Doc. No. 16).) Rojas did not file an
opposition to the Commissioner's motion to dismiss.
(See 4/22/2016 Order.) For the reasons set forth
below, the Commissioner's motion to dismiss is granted.
filed an application for SSI on November 1, 2011, alleging
disability beginning October 10, 2007, due to depression,
insomnia, gastritis, anxiety, and hernia. (Admin. R. at
135-40, 175.) This application was denied, and Rojas
requested a hearing before an ALJ. (Id. at 70,
71-74.) ALJ Jay L. Cohen held hearings on December 6, 2012
and September 4, 2013. Rojas testified at the September 4,
2013 hearing. (Id. at 25-69.) While Rojas was not
accompanied by an attorney, she was represented at the
hearings by Accredited Disability Representative Dale Masur
(“Masur”). (Id.) On September 13, 2013,
ALJ Cohen issued a decision that Rojas was not disabled for
purposes of Social Security benefits. (Id. at 6-24.)
On January 7, 2015, the Social Security Appeals Council
denied review. Rojas subsequently appealed to this Court.
was born in 1968 (id. at 135) and lives with her
children, ages 15 and 21. (Id. at 54-55.) She
completed school through the eighth grade in Santo Domingo,
(id. at 55, 176) and came to the United States in
1992. (Id. at 280). She can speak, read, and
understand English. (Id. at 174.) Rojas reported
that she last worked sixteen years ago, and stopped working
when she became pregnant. (Id. at 280-84.)
November, 2011, a Social Security Administration employee
interviewed Rojas and noted that she showed no signs of a
mental problem. (Id. at 147-49). The
administrative record reflects otherwise. In an August 9,
2011 letter, Safe Horizon, a victim assistance program, noted
that Rojas was a victim of domestic violence, and Safe
Horizon had been providing her with services since October
2007. (Id. at 312.) Specifically, Rojas was a victim
of sexual and physical abuse in 2007. (Id. at 280.)
Rojas' anxiety reportedly began around the time of her
abuse. (Id. at 162.)
disability report filed with her November 2011 Social
Security application, Rojas reported that she saw Albert
Benchabbat, M.D., an internist, in 2007 and 2008 for anxiety.
(Id. at 178.) She received further mental health
treatment at Jamaica Hospital's Brady Institute on May
31, 2011 and was prescribed Elavil for anxiety, Zoloft for
depression, and Zolpidem for insomnia. (Id. at 177,
180.) Rojas testified that she has trouble sleeping, and
experiences several panic attacks per week, each of which
lasts up to an hour. (Id. at 55, 63, 162, 163.)
Rojas reported that she sees her psychiatrist, Fermin
Gonzalez, M.D., every 27 days, and he prescribes Zoloft,
which “helps a little.” (Id.) Rojas
stated that even with medication she cannot be around groups
of people. (Id. at 55)
addition to her mental health problems, Rojas stated that she
sees a gastroenterologist, Yashpal Arya, M.D, for her
“bad stomach.” (Id. at 179, 181.)
Rojas' internist, Fortunato DiFranco, prescribed her
Nexium for her stomach and Pravastatin for high cholesterol.
(Id. at 177, 59-60.) Rojas also indicated that she
was hospitalized in 2004 for removal of a mass in her left
breast. (Id. at 307.) Separately, Rojas experiences
headaches, vertigo, back pain, and knee pain. (Id.
at 57-58.) As a consequence, Rojas cannot do heavy-lifting,
and reported that she becomes tired if she sits, stands, or
walks for too long. (Id. at 159-61.) Rojas stated
that she cannot walk up steep stairs. (Id.) However,
she generally does not use a cane, walker, or wheelchair, and
can kneel, squat, reach with her hands, see, hear, and talk.
(Id.) Rojas reported that she can dress, bathe, and
groom herself. (Id. at 283.) She can cook her own
meals, do her own laundry, take public transportation, and
engage in cleaning, shopping, and managing money.
Evidence Prior to Rojas' November 1, 2011 SSI
2009, Rojas was treated at Jamaica Hospital Medical Center
for neck pain (id. at 724-41) and hypertension with
a headache. (Id. at 742-57.) On June 9, 2010, an
upper gastrointestinal endoscopy revealed a hiatal hernia and
acute gastritis, (id. at 217, 225, 322) and a
pathology report showed antral gastric mucosa with mild
chronic inflammation, marked foveolar hyperplasia, and
lymphoid aggregate. (Id. 219.) The report also
indicated oxyntic gastric mucosa with mild chronic
inflammation, but was negative for H. Pylori. (Id.)
An abdominal ultrasound performed on December 28, 2010 was
normal. (Id. at 220.)
16, 2011, Rojas went to Jamaica Hospital's emergency
department complaining of right foot pain from tripping on an
escalator two weeks earlier. (Id. at 758-71.)
Results of a systems review, including neurological,
gastrointestinal, and psychological systems, were negative.
(Id. at 759.) On examination, her right foot was
swollen, and X-rays revealed soft tissue swelling but no
fracture. (Id. at 760, 802-03.)
went to Jamaica Hospital's emergency department a second
time on May 27, 2011, complaining of insomnia. (Id.
at 773.) Results of a systems review were negative, and
stomach, musculoskeletal, neck, and neurological examinations
were normal. (Id. at 772-80.) Upon examination,
Rojas appeared oriented. (Id.) Rojas was prescribed
Ambien for her insomnia. (Id. at 780.)
went to Jamaica Hospital's emergency department a third
time on May 31, 2011, complaining of depression, insomnia,
and fear of her ex-boyfriend. (Id. at 782, 785,
792.) A mental status examination revealed that Rojas'
appearance, attitude, psychomotor activity, memory, attention
and concentration, abstraction, judgment, speech, and thought
processes were normal. (Id.at Tr. 796.) Her
intellectual functioning was assessed as
“average.” (Id.) As a victim of domestic
violence, Rojas expressed concern that her ex-boyfriend was
following her. (Id.) She was discharged with a
diagnosis of mood disorder not otherwise specified (NOS) and
post-traumatic stress disorder (PTSD). (Id. at 314.)
August 4, 2011, Rojas spoke on the phone with her
psychiatrist, Dr. Fermin P. Gonzalez. Rojas reported a
history of depression and anxiety, and Dr. Gonzalez diagnosed
“major depressive disorder, single episode,
unspecified.” (Id. at 387-88.)
August 5, 2011, a psychiatric assessment revealed retardation
in her psychomotor activity, normal speech, a dysthymic mood,
normal and full-range affect, and intact thought processes.
(Id. at 396.) She had no delusions, hallucinations,
or suicidal ideations. (Id.) Her memory,
abstraction, insight, judgment, and impulse control were
intact. (Id.) Her concentration was “mildly
impaired” and her general knowledge was
“adequate.” (Id.) Dr. Gonzalez diagnosed
recurrent major depression and recommended both psychotherapy
and monthly medication management. (Id.)
Gonzalez saw Rojas again on September 1 and 29, 2011.
(Id. at 408-33.) On both days, Rojas had normal
mood, thought process, and thought content, and she
experienced no adverse side effects from taking Nexium,
Zoloft, and Ambien. (Id.at 409, 423.) The diagnosis
remained recurrent major depression. (Id.) After
examining Rojas again on October 27, 2011, Dr. Gonzalez found
that she was improved on the medication. (Id.)
Medical Evidence After Rojas' November 1, 2011 SSI
November 14, 2011, Rojas saw Dr. Gonzalez's colleague,
Lober Cervantes, M.D. (Id. at 448-62.) Rojas
reported no problems other than her insomnia. (Id.
at 451.) On mental status examination, her behavior, speech,
affect, thought processes and content, cognition, insight,
judgment, and mood were normal. (Id.) Dr. Cervantes
diagnosed recurrent major depression, prescribed Trazodone to
replace Ambien for sleeping, and continued Zoloft.
(Id. at 453.)
November 15, 2011, an esophagogastroduodenoscopy revealed
moderate gastritis, an esophageal nodular lesion, and an
antral lesion. (Id. at 358-59.) The biopsy was
negative for inflammation, intestinal metaplasia, H-Pylori,
and fungi. (Id. at 317-18.)
November 25, 2011 (id. at 463-77), Dr.
Gonzalez's mental status examination yielded normal
findings in behavior, mood, speech, thought process, thought
content, and cognition. (Id. at 466.) As there were
no side effects and examination findings were identical to
the December 15, 2011, results, Zoloft and Trazodone were
continued. (Id. at 481) A thyroid ultrasound
performed on January 3, 2012, showed a right-sided nodule.
(Id. at 319-20.)
January 5, 2012, Jennifer Kyle, Ph.D., examined Rojas.
(Id. at 280.) Dr. Kyle found Rojas' affect
restricted and anxious, mood dysthymic, intellectual
functioning limited, memory skills and concentration mildly
impaired, cognitive functioning below average, and judgment
and insight fair. (Id. at 280, 283.) Rojas was fully
oriented. (Id.) Dr. Kyle diagnosed major depressive
disorder without psychotic features, and chronic PTSD.
(Id. at 283.) She opined that Rojas could follow and
understand simple directions and instructions, learn new
tasks, and make appropriate decisions. (Id.) Rojas
had a mild impairment in performing simple tasks
independently. (Id.) She had moderate impairments in
her ability to maintain concentration, keep a regular
schedule, learn new tasks, perform complex tasks
independently, and make appropriate decisions. (Id.)
Dr. Kyle found that Rojas had marked impairments in relating
adequately with others and dealing appropriately with stress.
January 12, 2012, Dr. Gonzalez's mental status
examination yielded normal findings in behavior, mood,
speech, thought process, thought content, and cognition.
(Id. at 496.) The diagnosis remained recurring major
depression, for which Zoloft and Trazodone were continued
without side effects. (Id.) All of Dr.