Ortiz v. Comm'r of Soc. Sec.

309 F.Supp.3d 189

Eduardo ORTIZ, Plaintiff,

v.COMMISSIONER OF SOCIAL SECURITY, Defendant.

17 Civ. 4274 (GWG)

United States District Court, S.D. New York.

Signed May 7, 2018

Herbert Samuel Forsmith, Attorney at Law, New York, NY, for Plaintiff.

Graham Morrison, Social Security Administration, New York, NY, for Defendant.

OPINION AND ORDER

GABRIEL W. GORENSTEIN, United States Magistrate Judge

Plaintiff Eduardo Ortiz brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his claim for disability benefits under the Social Security Act (the "Act"). Both parties have moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c).¹ For the reasons stated below, Ortiz's motion is denied and the Commissioner's motion is granted.

I. BACKGROUND

A. Procedural History

Ortiz applied for Disability Insurance benefits on January 24, 2014, and Supplemental Security Income on January 31, 2014. See Certified Administrative Record, filed Nov. 27, 2017 (Docket # 15) ("R."), 21. The Social Security Administration ("SSA") denied Ortiz's applications and Ortiz sought review by an Administrative Law Judge ("ALJ"). R. 58–77, 96–97. A hearing was held on November 30, 2015, at which Ortiz and his attorney appeared. R. 33–57. In a written decision dated December 14, 2015, the ALJ found that Ortiz was not disabled. R. 18–28. The Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. R. 1–7. Ortiz filed this action on June 9, 2017, seeking review of that final decision. See Complaint, filed June 9, 2017 (Docket # 2).

B. The Hearing Before the ALJ

Ortiz was represented by an attorney at the hearing before the ALJ. R. 35. Before calling any witnesses to testify, the ALJ reviewed the record which, among other things, indicated that Ortiz was 55 at the time of the hearing, that he was diagnosed with diabetes mellitus with polyneuropathy and paresthesias, that he had a benign tremor, and that he claimed leg pain. R. 36–37.

Ortiz testified that he became disabled on June 30, 2013. R. 41. His right thigh was "always in pain," which he described as being between an eight and ten on a ten point scale, with ten being the most amount of pain. R. 48. Ortiz also had a tremor and numbness in his right hand, which shakes "once a day" or "once in a while," though Ortiz said that "[i]t might shake here because I get nervous." R. 49. The ALJ observed that he "didn't see it moving now." Id. Ortiz said that he could type and write, and that he could also button his shirt and tie his shoes, but that he had to take his time in so doing. Id.

Ortiz stated that he drank alcohol "maybe once a year" and did not take drugs except for medicine, which included tramadol for pain, as well as claritin, glipizide, and "lantis." R. 42–43. Ortiz said that the tramadol"doesn't do that well" to control the pain in his right thigh. R. 48–49. Ortiz stated that his blood sugar was controlled, although he tested it only every two or three days. R. 43.

Concerning daily activities, Ortiz testified that he lived on the first floor of an apartment building with his 77 year old mother. R. 38–39. Oritz testified that he shopped for groceries in the neighborhood for his mother because "I'm the only guy she's got." R. 39–40. Ortiz used the bus to visit his doctors, but did not use trains because he could not go up or down the staircases. R. 41. Ortiz stated that although he had a driver's license, he had not driven an automobile in seven or eight years. R. 41–42.

Concerning prior work history, Oritz testified that he stopped working in 2013 and received unemployment benefits for about "six or nine months" after that, and also received welfare benefits. R. 40. Before that, Ortiz said that he worked as a mail clerk for a bank, which consisted of carrying mail packages by hand to different locations on a single floor in the building. R. 43–44. Before that, Ortiz worked full time for a jewelry company in 2009, where he packed items weighing up to forty pounds into boxes while standing. R. 45–46. Before working for the jewelry company, Ortiz worked as a mail clerk for a company called "Paychecks" in 2007. R. 46. This mail clerk position was different than the one at the bank because at Paychecks, the packages were heavier (sometimes up to fifty or one hundred pounds) and Ortiz used a cart. R. 46–47. Before that, Ortiz worked as a typist for AT & T for four and one half years, where he performed "data processing into a computer system," but was ultimately laid off from that job. R. 47–48. Ortiz never graduated high school and did not receive a general equivalency diploma, though he finished 11th grade. R. 42.

Ortiz testified that he could not work for the bank as a mail clerk anymore because he could not sit or stand for too long without alternating, and that he could not work as a mail clerk for the jewelry company because it required him to walk all day, which he could not do. R. 49–50. Ortiz also testified that he could not work as a data processor because he could not sit for the length of time that job required. R. 50.

Bernard Gussoff, M.D., a medical expert witness, testified. Dr. Gussoff was chairman of the Department of Medicine at Jamaica Hospital for 12 years and worked at Maimonides Medical Center for 23 years in the specialties of medicine, hematology, and oncology. R. 50–51. Referring to evidence in the record, including treatment notes from Ortiz's doctors, Dr. Gussoff found that Ortiz had "diabetes mellitus with a sensory polyneuropathy, not a motor," which caused "paresthesia neuralgia," or altered sensation in his extremities. R. 51–52. Dr. Gussoff opined that Ortiz had "mild osteoarthritis" causing pain in his right hip, though Dr. Gussoff had no x-rays to document that. R. 52. Dr. Gussoff agreed with the ALJ that Ortiz had a tremor that had been described as intermittent and benign. R. 53. Based on this, Dr. Gussoff found that Ortiz did not meet or equal any listed impairment under "9.08, 1.02a." Id. With respect to Ortiz's residual functional capacity ("RFC"), Dr. Gussoff opined that Ortiz was still capable of sedentary work and lifting and carrying up to ten or twenty pounds occasionally, standing or sitting for up to six hours, and standing or walking intermittently during the day for two hours. R. 53–54. Dr. Gussoff based this determination in part on the fact that Ortiz "shops, which means that he has to either walk, walk to the shopping center, walk down the aisles, pick items of various weights into his basket and carry them back to the house." R. 53. Dr. Gussoff also found only mild manipulative limitations and no reaching limitations because although Ortiz indicated that he had numbness in his hands, he was able to eat and type, indicating good sensory contact. R. 54.

The ALJ called Helene Feldman, a vocational expert witness ("VE"). Id. Feldman has a master's degree in "rehab counseling," is a certified employee assistance practitioner, is licensed in New York State as a mental health counselor, and had been working "in the field" for over 25 years. R. 55. The ALJ told the VE that Ortiz had held three jobs before—mail clerk, packager in a jewelry business, and data processor. Id. The VE classified each of these jobs using the Dictionary of Occupational Titles ("DOT"), and described Ortiz's prior work as a mail clerk as requiring "light strength," his prior work with the jewelry business as a packer as requiring "medium strength," and his prior work as a data processor as requiring "sedentary strength." Id. The VE noted that Ortiz had no transferrable skills. Id.

The ALJ asked the VE to consider a hypothetical individual with a sedentary RFC who was also limited to "no climbing, no balancing, no crawling, occasional bending, stooping, kneeling and crouching, no driving, no heavy machinery, no unprotected heights, [and] occasional uneven surfaces." Id. The VE testified that such a person would be able to perform Ortiz's prior work as a data processor, as well as additional jobs which existed in substantial numbers in the national economy, including dowel inspector, and dial marker. R. 55–56. The VE testified, however, that if this person were off-task more than five to ten percent of the day, or needed to miss more than three days a month, then there would be no work that this person could perform. Id.

C. Medical Evidence

The medical evidence in the record is summarized in the Commissioner's brief. See Def. Mem. at 2–5. We discuss the evidence relevant to our conclusions in Section III below.

D. The ALJ's Decision

The ALJ denied Ortiz's application for benefits on December 14, 2015. R. 18. The ALJ found that Ortiz met the insured status requirements of the Act through March 31, 2017, and that he had not engaged in substantial gainful activity since June 30, 2013, the alleged onset date. R. 23. The ALJ found that Ortiz had the following severe impairments: "diabetes mellitus with sensory polyneuropathy ; history of mild osteoarthritis of the hip ; and obesity." Id. He found, however, that Ortiz had no medically determinable psychological impairment. R. 24. The ALJ also noted that although testing performed in February 2014 by one of Ortiz's treating physicians, Dr. Yelena Lindenbaum, indicated that Ortiz had mild carpal tunnel syndrome and mild L3 radiculopathy, earlier testing and later studies and treatment notations did not document these findings. R. 24, 26, 524. The ALJ found that Dr. Lindenbaum's findings were evidence of an "acute process" and that Ortiz "d[id] not have a severe medically determinable impairment associated with carpal tunnel syndrome or lumbar radiculopathy." R. 24. Finally, the ALJ found that evidence of Ortiz's benign tremor was not regularly corroborated by other physicians and thus was not associated with a severe impairment. Id.

The ALJ then determined that none of Ortiz's severe...