Ortiz v. Colvin
Ortiz v. Colvin
Opinion of the Court
Plaintiff Noemi Ortiz ("Ortiz") brings this action pursuant to Section 205(g) of the Social Security Act (the "Act"),
On December 5, 2012, Ortiz filed an application for a period of disability and DIB under Title II of the Act, alleging disability beginning on August 11, 2011. (Tr. 65).
Currently before the Court are the parties' motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Dkt. ## 11; 17). For the reasons set forth below, Ortiz's motion (Dkt. # 11) is denied, and the Commissioner's cross motion (Dkt. # 17) is granted. Ortiz's Complaint (Dkt. # 1), therefore, is dismissed with prejudice.
DISCUSSION
A. Standard of Review
The Commissioner's decision that plaintiff is not disabled must be affirmed if it is supported by substantial evidence, and if the ALJ has applied the correct legal standard. See
The same level of deference is not owed to the Commissioner's conclusions of law. See Townley v. Heckler ,
B. Disability Determination
An ALJ proceeds through a five-step evaluation in determining whether a claimant is disabled within the meaning of the Act. See Bowen v. City of New York ,
At step three, the ALJ examines whether the claimant's impairment meets or equals the criteria of a listed impairment in Appendix 1 to Subpart P of Part 404 (the "Listing").
The ALJ then turns to whether the claimant's RFC permits performance of the requirements of the claimant's past relevant work.
C. The ALJ's Decision
In this case, the ALJ applied the five-step analysis described above. At step one, the ALJ found that Ortiz had not engaged in substantial gainful activity since August 11, 2011, the alleged onset date. (Tr. 67). At step two, the ALJ found that Ortiz had the following severe impairments: left shoulder capsulitis ;
Next, the ALJ determined that Ortiz retained the RFC to perform less than the full range of sedentary work.
D. Analysis
Ortiz's principal argument for remand is that the Commissioner's decision is not supported by substantial evidence and is based on errors of law. (Dkt. # 11-1 at 2). Specifically, Ortiz argues that the ALJ improperly relied on his own lay interpretation of the medical evidence in arriving at his RFC finding regarding Ortiz's use of her left upper extremity for fingering and handling. (Id. at 22). According to Ortiz, this is so because "[n]one of the opinions" relied upon by the ALJ for this portion of his RFC finding assessed Ortiz's left hand and wrist conditions, and, in any event, those medical opinions are stale or moot evidence. (Id. at 25-26). Ortiz also argues that the ALJ improperly afforded great weight to Dr. Eduardo Arreaza's medical opinion, yet failed to explain why certain limitations in that opinion were not included in the ALJ's RFC finding. (Id. at 26-28). Finally, Ortiz argues that the ALJ failed to properly evaluate the opinion of Certified Nurse Practitioner Christie Bowen ("NPC Bowen").
1. Whether the ALJ Improperly Substituted His Own Lay Opinion to Determine Ortiz's RFC.
Ortiz's first argument is that the ALJ's RFC finding regarding use of her upper left extremity for fingering and handling is not supported by any of the medical opinions in the record, and that the opinions on which the ALJ relied are stale or moot in light of Ortiz's December 2014 surgery, and, thus, unreliable. Therefore, the ALJ improperly relied upon his lay opinion when determining that portion of his RFC finding. The Court finds this argument to be without merit.
To be sure, generally, "an ALJ is not qualified to assess a claimant's RFC on the basis of bare medical findings, and as a result an ALJ's determination of RFC without a medical advisor's assessment is not supported by substantial evidence."
*587Dailey v. Astrue , No. 09-cv-0099,
Here, the ALJ gave "great" or "significant" weight to three opinions in the record: Dr. Elizama Montalvo, M.D; Dr. Steven Hausmann, M.D.; and Dr. Eduardo Arreaza, M.D.
Notably, Ortiz's hand and finger dexterity was intact, her grip strength on the left was four out of five, and five out of five on the right, and she was able to zip, button, and tie. (Tr. 432). Regarding Ortiz's wrists, her dorsiflexion
*588In addition, independent medical examiner Dr. Hausmann was clearly aware of Ortiz's left wrist issues, yet similarly did not impose any limitations regarding Ortiz's fingering or handling with her left upper extremity. The record reflects that Dr. Hausmann evaluated Ortiz on three separate occasions: February 2012 (Tr. 368-71), October 2012 (Tr. 365-67), and May 2013 (Tr. 528-29). At the February 2012 evaluation, Dr. Hausmann noted that Ortiz brought a report with her from Dr. Gregg Nicandri, Ortiz's orthopedist, which indicated that Ortiz "had a diagnosis of left shoulder adhesive capsulitis and left de Quervain's tendinitis." (Tr. 368). Ortiz presented with complaints of "sharp pain in the upper part of her left shoulder and also pain in the wrist and difficulty gripping." (Tr. 369). Upon examination, Ortiz's left wrist "showed negative Finkelstein's test[.]" (Tr. 370).
In October 2012, Dr. Hausmann noted that while Ortiz presented with complaints of left wrist pain for which she wore a brace, she showed no signs of swelling or deformity in the left wrist, and a Finkelstein test was again negative. (Tr. 366). Ortiz's grip, pinch, and intrinsic strength was grade four out of five. (Id. ). Based on his evaluation of Ortiz, Dr. Hausmann's only diagnosis was "acute left shoulder strain with physician diagnosis of adhesive capsulitis"-he gave no diagnosis regarding Ortiz's left wrist or hand. (Tr. 366-67). Dr. Hausmann opined that Ortiz's "disability at this time related to the shoulder would be at the mild-to-moderate level.... Appropriate restrictions for her would be to avoid overhead lifting with her left arm. Other than that, I have no specific restrictions." (Tr. 367). In addition, although Ortiz also presented with wrist pain in May 2013, it is not clear if Dr. Hausmann assessed any functional limitations regarding Ortiz's wrist use at that time. (Tr. 528-529).
Moreover, the ALJ thoroughly reviewed and discussed Ortiz's treatment records from 2014 relating to her left de Quervain tenosynovitis and left ring finger trigger.
*589Still, both the ALJ in his opinion and the Commissioner's brief accurately cite Dr. Gonzalez's findings that, because of Ortiz's "left de Quervain tenosynovitis, resolved," and "left ring finger trigger," Ortiz's level of disability was "75%-marked," she should not lift over 5 pounds" and was "able to perform sedentary work, with limited freedom to change positions, etc." (Id. ).
Finally, the ALJ acknowledged that Ortiz had surgery on her left wrist and ring finger in December 2014 because of ongoing issues with her left wrist and hand. (Tr. 73). He further recognized that the fact of surgery "demonstrate[d] significant limitations involving the left upper extremity," (Tr. 75), and took into consideration the most recent physical RFC completed post-surgery by NPC Bowen, albeit affording that assessment "little weight," (Tr. 74).
Therefore, this Court finds that the ALJ's RFC finding that Ortiz is limited to "occasional" use of her left upper extremity for fingering and handling is supported by substantial evidence, and neither the product of the ALJ's lay opinion nor stale evidence. Based on this Court's review of the record, sufficient information existed for the ALJ to make his disability determination, and the ALJ properly weighed all of the available evidence "to make an RFC finding that [is] consistent with the record as a whole." Matta ,
2. Whether the ALJ's RFC Finding Improperly Failed to Incorporate Certain Limitations from Dr. Arreaza's Medical Opinion.
Ortiz also argues that the ALJ failed to incorporate all of the limitations assessed by Dr. Arreaza into his RFC finding, despite giving that opinion "great weight." (Dkt. # 11-1 at 26-28). Specifically, Dr. Arreaza opined that Ortiz had certain environmental restrictions due to her asthma. Ortiz was to "avoid all exposure" to "extreme cold, wetness, humidity, and hazards (machinery, heights, etc.)" and avoid "even moderate exposure" to "extreme heat, fumes, odors, dusts, gases, poor ventilation, etc." (Tr. 703). Dr. Arreaza also opined that Ortiz's asthma would cause her to be absent from work "about twice a month" on average. (Id. ). Ortiz claims that the ALJ erred by not including these limitations in his RFC finding and by failing to explain his reasons "for seemingly rejecting these limitations." (Dkt. # 11-1 at 27).
*590The Commissioner argues that the ALJ's failure to include the assessed environmental limitations in his RFC finding was harmless error. (Dkt. # 17 at 7-8). The Court agrees. "Where application of the correct legal principles to the record could lead only to the same conclusion, there is no need to require agency reconsideration." Zabala v. Astrue ,
Therefore, the "environmental limitations imposed by [Dr. Arreaza] would not have changed the ALJ's step five determination." Kenyon v. Comm'r of Soc. Sec. , No. 16-cv-0260,
Nor is remand required because of the ALJ's failure to incorporate Dr. Arreaza's opinion that Ortiz would miss on average two days of work a month due to asthma into his RFC finding. This, too, is harmless error, especially in light of the VE's testimony. At the disability hearing, Ortiz's attorney asked the VE whether someone who was limited to occasional use of the non-dominant upper extremity, like Ortiz, could sustain work if he or she needed "unscheduled days off on average twice a month." (Tr. 112). The vocational expert responded that "[m]ore than two days per month would be no work. Up to two days would be fine." (Id. ). In the Court's view, this question sufficiently established that Dr. Arreaza's opinion regarding Ortiz's anticipated absences would not affect the ALJ's disability determination on remand. Therefore, the ALJ's failure to incorporate this limitation into his RFC finding was harmless error.
3. Whether the ALJ Improperly Evaluated the Opinion of NPC Bowen.
Finally, Ortiz argues that the ALJ failed to properly evaluate NPC Bowen's treating "other source" opinion and explain the weight given to that opinion. (Dkt. # 11-1 at 28-30). According to Ortiz, this failure was "especially harmful" because NPC Bowen's opinion "directly conflicted with the step four finding in that, among other ways, [NPC Bowen] opined [Ortiz] could not lift more than 5 pounds and would need the ability to change positions." (Id. at 30). The Commissioner responds *591that the ALJ "in fact considered NPC Bowen's opinion, though he misattributed it to Dr. Gonzalez." (Dkt. # 17 at 8). The Commissioner further contends that the ALJ rightly afforded that opinion "little weight" both because NPC Bowen's opinion was "unquestionably based on a short-term assessment of [Ortiz] immediately after her hand surgery," and "NPC Bowen was not an acceptable medical source and her opinion was not entitled to deference." (Id. ).
Ortiz replies that the Commissioner's misattribution argument is "based on mere speculation." (Dkt. # 18 at 5). After a careful review of the record, though, this Court agrees with the Commissioner that the ALJ misattributed that opinion to Dr. Gonzalez. This Court has not found, and neither party references, a January 2015 physical RFC questionnaire completed by Dr. Gonzalez. Yet there is a January 7, 2015, "physical residual functional capacity questionnaire," which NPC Bowen completed and addressed to Dr. Gonzalez. (Tr. 1131-1135). Upon review, it is evident that the substance of NPC Bowen's physical RFC opinion aligns with the ALJ's discussion of the opinion he attributed to Dr. Gonzalez, to which he afforded "little weight." (Tr. 74). This suggests that the ALJ's evaluation of that opinion would not have changed had he credited the opinion to NPC Bowen. See Acevedo v. Colvin ,
Moreover, at the end of the ALJ's discussion of the January 2015 physical RFC questionnaire, he cited "Exhibit 30F." (Tr. 74). That citation refers to the "Physical RFC Assessment" of NPC Bowen completed on January 7, 2015. (Tr. 84). For these reasons, this Court is convinced that the ALJ mistakenly attributed the January 2015 physical RFC questionnaire to Dr. Gonzalez as opposed to NPC Bowen, and will not remand based on this error. See, e.g., Slater v. Berryhill , No. 16-cv-30147,
*592The Court, therefore, also disagrees with Ortiz that the ALJ "failed to explain what weight, if any, he afforded [NPC Bowen's] opinion," (Dkt. # 11-1 at 28), and that the ALJ "outright reject[ed]" her opinion, (Dkt. # 18 at 6). As stated, the ALJ analyzed NPC Bowen's RFC questionnaire and accurately described NPC Bowen's post-surgical assessment of Ortiz. The ALJ gave "little weight" to NPC Bowen's opinion because "it was completed one month after [Ortiz] underwent surgery," and, in the ALJ's view, was "not an accurate indicator of [Ortiz's] functioning since a true measure of [Ortiz's] functional capabilities would take place after she fully recovered from the surgery." (Tr. 74).
This was a reasonable reading of NPC Bowen's opinion. Although NPC Bowen opined that Ortiz could not sustain full-time employment at any exertional level (Tr. 1133), that Ortiz could never lift and carry less than ten pounds (Tr. 1134), and had significant limitations with reaching, handling, and fingering (Tr. 1135), her opinion was clearly limited to the period during which Ortiz was recovering from surgery. NPC Bowen specified that Ortiz's impairments had not lasted and were not expected to last at least twelve months, could be treated with physical therapy, and clarified that Ortiz was "temporarily totally disabled at this time ." (Tr. 1132-1135) (emphasis supplied). Indeed, tellingly, Ortiz's prehearing memorandum to the ALJ stated that NPC Bowen's opinion "was provided in the context of recovery from surgery only ." (Tr. 314) (emphasis supplied). "An assessment of functionality conducted while a claimant is recovering from surgery does not accurately reflect the claimant's long-term limitations." Thomas v. Astrue , No. 09-cv-71,
CONCLUSION
For the foregoing reasons, Ortiz's motion to vacate the ALJ's decision and remand the matter (Dkt. # 11) is DENIED , and the Commissioner's cross motion for judgment on the pleadings (Dkt. # 17) is GRANTED . Ortiz's Complaint (Dkt. # 1) is DISMISSED with prejudice . The Clerk of Court is directed to enter judgment and close this case.
IT IS SO ORDERED.
References to page numbers in the Administrative Transcript (Dkt. # 8) utilize the internal Bates-stamped pagination assigned by the parties.
Adhesive capsulitis, also called frozen shoulder, is "a condition in which joint motion becomes restricted because of inflammatory thickening of the capsule; a common cause of shoulder stiffness." Stedmans Medical Dictionary 140970, Westlaw (database updated November 2014).
de Quervain tenosynovitis is inflammation of certain tendons in the wrist, which is diagnosed by a specific provocative test, i.e., the Finkelstein test. Stedmans Medical Dictionary 902190, Westlaw (database updated November 2014).
"Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met."
The ALJ and the parties in their briefs refer to this person as NPC Christie "Bowen," whereas the administrative transcript sometimes refers to that same person as having the last name "Bowen" or "Bowmer." For clarity, this Court will refer to this individual as NPC Bowen, consistent with the parties' briefs.
The ALJ accorded "great weight" to the opinion of Dr. Arreaza, Ortiz's pulmonologist. (Tr. 75-76). Dr. Arreaza assessed Ortiz's functional limitations related to her asthma. (Tr. 701-703). Given that this assessment is unrelated to functional limitations associated with Ortiz's use of her left upper extremity for fingering and handling, the Court will not analyze whether Dr. Arreaza's opinion is supportive of that portion of the ALJ's RFC finding.
Dorsiflexion is an "upward movement (extension) of ... the hand or fingers." Stedmans Medical Dictionary 264780, Westlaw (database updated November 2014).
Finkelstein test is a test to detect de Quervain tenosynovitis"in which the thumb is flexed into the palm and is covered by the remaining four digits; the wrist is then bent toward the ulna; positive result of test produces pain and crepitus along the path of the involved tendon." Stedmans Medical Dictionary 905070, Westlaw (database updated November 2014).
Trigger finger is "a condition in which the movement of the finger is arrested for a moment in flexion or extension and then continues with a jerk[.]" Stedmans Medical Dictionary 334400, Westlaw (database updated November 2014).
Although the ALJ only attributes Ortiz's 2014 treatment notes for her left de Quervain tenosynovitis and left ring finger trigger to Dr. Nicandri and NPC Bowen, based on this Court's review, it is apparent that Dr. Ronald Gonzalez, D.O., an orthopedic surgeon, also evaluated Ortiz in 2014 related to the same injuries. (See, e.g. , Tr. 626-643, 1124-1127).
NPC Bowen's opinion is discussed in more detail below. (See, infra , § D.3).
Reference
- Full Case Name
- Noemi ORTIZ v. Carolyn W. COLVIN, Acting Commissioner of Social Security
- Cited By
- 228 cases
- Status
- Published