Ortega v. Berryhill

Decision Date30 May 2017
Docket Number16 Civ. 5999 (AJP)
PartiesJOHANNA ORTEGA, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
CourtU.S. District Court — Southern District of New York

ANDREW J. PECK, United States Magistrate Judge:

Plaintiff Johanna Ortega, represented by counsel, brings this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security denying her application for Disability Insurance Benefits ("DIB"). (Dkt. No. 2: Compl.) Presently before the Court are the parties' cross motions for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). (Dkt. No. 15: Ortega Notice of Mot.; Dkt. No. 17: Comm'r Notice of Mot.) The parties have consented to decision of the case by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 9.)

For the reasons set forth below, the Commissioner's motion for judgment on the pleadings (Dkt. No. 17) is GRANTED and Ortega's motion (Dkt. No. 15) is DENIED.

Procedural Background

Ortega filed for benefits on January 22, 2013, alleging a disability onset date of August 1, 2011. (Dkt. No. 11: Administrative Record ("R.") 95-96, 200-01.) The Social Security Administration ("SSA") denied Ortega's application. (R. 94-105.) On October 3, 2014, Ortega, represented by counsel, had a hearing before Administrative Law Judge ("ALJ") Robert Gonzalez. (R. 42-93.) On December 29, 2014, ALJ Gonzalez issued a written decision finding Ortega not disabled within the meaning of the Social Security Act. (R. 16-33.) ALJ Gonzalez's decision became the Commissioner's final decision when the Appeals Council denied review on May 31, 2016. (R. 1-3.)

Non-Medical Evidence and Testimony

Born on February 14, 1978, Ortega was thirty-three years old at the alleged August 1, 2011 onset of her disability. (R. 200-01.) Ortega previously worked as a titled receptionist, unit clerk, and medical record coder. (R. 63-64, 66, 76-77, 245.) After becoming pregnant, she took a year off and obtained a position as a bus monitor. (R. 64-66, 245.) Ortega testified that she held this job for two school years until she failed her physical, prompting the school not to renew her employment for the subsequent year. (R. 64-66.)

On February 25, 2013, Ortega completed a function report. (R. 229-44.) She reported caring for her two daughters with the assistance of her husband or immediate family. (R. 229-30.) She reads, watches television, and solves crossword puzzles. (R. 233.) She has no problems with personal care. (R. 230-31.) She prepares simple meals three to four times a week. (R. 231.) Occasionally, she will be unable to fix her meal because of excessive pain in her hands. (Id.) She performs simple household chores, but requires numerous breaks of at least an hour, and can travel by car for short distances. (R. 232-33.) She shops for groceries once a week but has someone accompany her. (Id.) She engages in daily phone conversations. (R. 234.) She reports suffering from high anxiety, impatience, and irritability. (Id.) However, she reports that she does not have issues interacting with authority figures nor has she lost a job because of an inability to get along with people. (R. 236.) Ortega reported that she could stand for only 20 minutes at a time before needing to sit, and could sit for 40-60 minutes at a time but must walk around after sitting for 60 minutes. (R. 234-25.)

At the October 3, 2014 hearing, Ortega testified that she suffered from asthma, rheumatoid arthritis ("RA"), fibromyalgia, acid reflux, irritable bowl syndrome ("IBS"), and migraines. (R. 46-53.) She reported being treated with Plaquenil for RA, steroids for asthma, Percocet for fibormyalgia, Omeprazole for acid reflux, and Xanax and Zoloft for emotional problems. (Id.) Her RA produced "burning" and "numbing" sensations in her hands, wrists, and fingers, causing an inability to bend at the joints and an inability to hold or carry anything. (R. 48.) Disc problems in her back prevented her from standing up straight and produced pain radiating to her arms and legs when sitting or standing for long periods of time. (R. 50-51.) Ortega testified that she suffered from stress-induced migraine headaches at least five times a month lasting at least twenty-four hours. (R. 52-53.) Ortega occasionally was unable to leave her bed due to severe hand and back pain. (R. 53.) Ortega testified to being unable to walk her child to the bus stop (R. 56), or stand for more than ten minutes engaging in the same task without having to sit due to back pain (R. 59). She testified to being prone to irritability and thoughts of violence when engaging in typical interactions at work or at the grocery store. (R. 68-72.) Ortega claimed that if she were required to return to work, her short temper would lead to her being fired or jailed. (R. 71.)

At the hearing, vocational expert Sugi Komarov testified that an individual with Ortega's vocational profile and residual functional capacity would be unable to perform any of her previous work positions, but could be employed as an addresser, document preparer, semi-conductor bonder, or final assembler. (R. 78.) These jobs are all unskilled sedentary positions that exist in significant numbers in the national economy and do not permit an option to perform from either a seated or standing position. (R. 78, 88-89.) When asked whether this same hypothetical individual could maintain employment being off task ten percent of the time, Komarov testified that such an individual would be unable to maintain employment. (R. 78-79.) Komarov also testified that being absent more than one day per month would preclude an individual from maintaining employment. (R. 79-80.)

Medical Evidence Before the ALJ

On August 8, 2011, Ortega went to the Nyack Hospital emergency department complaining of "a two day history of progressively worsening [right lower quadrant] abdominal pain . . . with fever, chills, nausea, and non-bloody vomiting." (R. 783-84.) Ortega reported that these symptoms arose several days after an appendectomy performed in Ecuador on July 25, 2011. (R. 784.) Dr. Brenda Liu diagnosed these issues as fever, splenomegaly, acute conjunctivitis, and acute viral illness. (R. 786.) Dr. Liu determined that no additional testing was necessary and discharged Ortega on the same day. (Id.)

On August 31, 2011, Ortega was treated by Dr. Nihal Sandhu, who diagnosed Ortega as having asthmatic bronchitis, abdominal pain, gastroesophageal reflux disease ("GERD"), and bronchitis. (R. 668.) For treatment, Dr. Sandhu prescribed Cipro, Omperazole, and Bentyl. (Id.) On December 7, 2011, Dr. Sandhu performed a pulmonary function analysis ("PFA") and diagnosed moderate obstructive airway disease. (R. 661-62, 665.) Dr. Sandhu prescribed Z-pack and Advair. (R. 665.) On December 12, 2011, Ortega reported that mold covered the walls of her home and complained of shortness of breath, dyspnea, and wheezing. (R. 660.) Dr. Sandhu found wheezing and rhonchi, but no evidence of gallop, rub, or shortness of breath. (Id.) He prescribed Singulair, Flonase nasal spray, and prednisone. (Id.)


On January 18, 2012, Ortega was seen by Dr. David Dorf for symptoms of recurrent migraine headaches, lower back pain, asthma, and gastritis. (R. 417.) Physical examination revealed that her musculoskeletal and psychiatric conditions were normal. (Id.) On January 27, 2012, Ortega returned to Dr. Sandhu, complaining of shortness of breath, dyspnea, wheezing, phlegm, and coughing. (R. 658.) After administering another PFA, Dr. Sandhu diagnosed her symptoms as severe bronchial asthma, severe GERD, and mold allergies. (Id.)

On February 16, 2012, Ortega went to the Nyack emergency department for shortness of breath. (R. 774, 782.) Chest x-rays revealed clear lungs and no abnormalities in her heart size or pulmonary vessel caliber. (R. 782.) Ortega returned on February 24, 2012 for chest pain. (R. 769.) X-rays of her right ribs showed no evidence of rib fracture or any acute abnormalities. (R. 772.) Dr. Liu diagnosed Ortega with muscle strain and chest wall pain. (R. 770-71.)

On March 2, 2012, Ortega returned to Dr. Sandhu complaining of right chest pain, shortness of breath, dyspnea, wheezing, coughing, and phlegm. (R. 653.) Dr. Sandhu maintained his diagnosis of severe bronchitis and GERD, and he prescribed Protonix, Bentyl, Singulair, and Percocet. (R. 653.) On March 15, 2012, Dr. Dorf administered a complete abdominal ultrasound that revealed no abnormalities. (R. 437.) On April 6, 2012, Dr. Sandhu diagnosed Ortega with bronchial asthma, anxiety neurosis and panic attacks, prescribed Xanax, and advised Ortega to seek psychiatric assistance. (R. 651.)

On April 9, 2012, Ortega returned to the Nyack emergency department for nausea, abdominal pain, and vomiting. (R. 762.) Ortega was treated with Pepcid, IV hydration, and Zofran and released after 3.5 hours. (R. 763-64.) On April 13, 2012, Ortega underwent a colonoscopy with biopsy and polypectomy. (R. 757.) The procedure revealed two polyps, which were resected, and an otherwise normal colon. (Id.) On May 11, 2012, Dr. Sandhu diagnosed Ortega's complaints of severe coughing as severe bronchial asthma, allergies, furrowed tongue, and anxiety. (R. 650.) On May 22, 2012, Dr. Dorf examined Ortega and noted that she had a history of smoking. (R. 415.) His examination revealed no issues of concern. (Id.)

On June 18, 2012, Ortega went to the Nyack emergency department for "sharp" pain in her left back and chest. (R. 748.) Physical examination showed that Ortega suffered wheezing but had no rales or rhonchi. (Id.) Chest X-rays revealed no acute pulmonary disease, but showed a healing right fourth rib fracture. (R. 753.) Dr. Nava Bak diagnosed atypical chest pain and ashtma exacerbation. (R. 749.) Ortega requested to be discharged, suffering only "mild painful distress." (R. 748.)

On June 22, 2012, Ortega returned...

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