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Wilfredo Ortega v. Commissioner of Social Security

February 20, 2012


The opinion of the court was delivered by: William J. Martini, U.S.D.J.:


Plaintiff Wilfredo Ortega, a former warehouseman, brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking review of a final determination by the Commissioner of Social Security (the "Commissioner") concluding that Ortega was not under a disability from June 21, 2008 through July 19, 2010, and denying Ortega's application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") Benefits. For the reasons that follow, the Commissioner's decision is AFFIRMED.


Ortega applied for benefits in August 2008. Administrative Transcript ("Tr.") 19. His claims were denied on November 25, 2008, and upon reconsideration on April 9, 2009. Id. Ortega requested a hearing, which took place on June 23, 2010. Id. At the hearing, Ortega testified that he was suffering from depression and problems with his spine, that he could stand for 20 minutes and sit for 30 minutes, and that he could lift ten pounds. Id. at 38-41. One month later, ALJ James Andres issued a written decision concluding that from June 21, 2008 through July 19, 2010, the alleged dates of disability, Ortega could perform light work, which "involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds." 20 C.F.R. §§ 404.1567(b), 416.967(b). The Appeals Council denied review. Tr. at 1.

The record evaluated by the ALJ and the Appeals Council reflects that in 2008, Ortega was diagnosed with non-Hodgkins lymphoma, Hepatitis B, and a fracture of his L5 vertebra. Id. at 445. The fracture appears to have been caused by the lymphoma. Ortega was diagnosed with depression in 2009. Id. at 704. Also in 2009, a sleep study documented "significant daytime sleepiness." Id. at 706.

A. Doctors Appointments

On September 18, 2008, Ortega saw his oncologist, Dr. Mecide Gharibo. He reported improved back pain following his cancer treatments. Id. at 445. Roughly one month later, on October 10, 2008, Ortega "denie[d] pain or discomfort in the rest of his muscle, joints, or ribs at the present time." Id. at 462. On October 21, 2008, Ortega reported "occasional midthoracic back pain as well as low-back pain [that was] much improved." Id. at 466. Six weeks after that, Ortega told Dr. Gharibo that he was still feeling lower leg and feet pain, but he "denie[d] pain or discomfort in muscles, joints, or ribs." Id. at 643. On January 23, 2009 Ortega reported "lower back pain on rare occasions." Id. at 720. That same month, Ortega was diagnosed with depression and started on antidepressants. Id. at 704. Eleven months later, results of a sleep study performed by Dr. Jagadeeshan Sunderram confirmed that Ortega had "significant daytime sleepiness." Id. at 706.

B. RFC Assessments

On several occasions between November 24, 2008 and March 12, 2010, doctors assessed Ortega's "residual functional capacity" ("RFC"), essentially his ability to work. The first physician to perform an assessment was Dr. Nawal Abdelmessieh, a medical consultant who apparently never treated Ortega. Dr. Abdelmessieh's first assessment, dated on November 24, 2008, concluded that Ortega was unable to lift more than ten pounds, stand for more than two hours in an eight-hour workday, or sit for more than 6 hours in an eight hour workday. Id. at 521. Dr. Abdelmessieh's second RFC assessment, also performed on November 24, 2008, considered how Ortega would progress over the course of a year. In that second assessment, Dr. Abdelmessieh predicted that within twelve months, Ortega would be able to lift 20 pounds occasionally and 10 pounds frequently, and that Ortega would not be able to sit or stand for more than six hours in an eight-hour workday. Id. at 529.

Ortega's treating physicians also performed RFC assessments. On March 12, 2010, Ortega's psychiatrist, Dr. Lara, concluded that Ortega's "memory [was] mildly impaired from chemotherapy and depression," and that Ortega's ability to maintain attention/concentration was "poor or none." Id. at 716, 718. It was Dr. Lara's opinion that Ortega was unable to work despite having "made some progress in recovery from major depression." Id. at 704.

On January 26, 2010, Ortega's oncologist, Dr. Gharibo, concluded that Ortega was "unable to return to work [due to] secondary side effects from his treatment regimens." Id. at 711. Dr. Gharibo also concluded that Ortega had "permanent back damage due to his cancer destroying the vertebral bodies and causing lower extremity weakness." Id. at 712. Finally, Dr. Gharibo concluded that Ortega could lift a maximum of ten pounds, could stand for 30 minutes during an eight hour workday, and could sit without interruption for 30 minutes at a time. Id. at 713.


A. The Five-Step Sequential Analysis

Under the authority of the Social Security Act, the Social Security Administration has established a five-step evaluation process for determining whether a claimant is entitled to benefits. 20 C.F.R. §§ 404.1520, 416.920. In the first step, the Commissioner determines whether the claimant has engaged in substantial gainful activity since the onset date of the alleged disability. Id. § 404.1520(b), 416.920(b). If not, the Commissioner moves to step two to determine if the claimant's alleged impairment, or combination of impairments, is "severe." Id. §§ 404.1520(c), 416.920(c). If the claimant has a severe impairment, the Commissioner inquires in step three as to whether the impairment meets or equals the criteria of any impairment found in the Listing of Impairments. 20 C.F.R. Part 404, Subpart P, Appendix 1, Part A ("Part A"). If so, the claimant is automatically eligible to receive benefits (and the analysis ends); if not, the Commissioner moves on to step four. Id. §§ 404.1520(d), 416.920(d). In the fourth step, the Commissioner decides whether, despite any severe impairment, the claimant retains the RFC to perform past relevant work. Id. §§ 404.1520(e)-(f), 416.920(e)-(f). The claimant bears the burden of proof at each of these first four steps. At step five, the burden shifts to the Social Security ...

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