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Rojas v. Commissioner of Social Security

United States District Court, E.D. New York

March 8, 2017




         Plaintiff 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.


         I.Procedural History

         Rojas 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.

         II. Administrative Record

         Rojas 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.)

         In 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.)

         In the 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)

         In 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. (Id.)

         a.Medical Evidence Prior to Rojas' November 1, 2011 SSI Application

         In 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.)

         On May 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.)

         Rojas 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.)

         Rojas 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. ( 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.)

         On 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.)

         On 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.)

         Dr. 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. ( 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.)

         b. Medical Evidence After Rojas' November 1, 2011 SSI Application

          On 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.)

         On 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.)

         On 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.)

         On 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. (Id.)

         On 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. ...

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