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Ortiz v. Berryhill

United States District Court, N.D. Ohio, Eastern Division

June 11, 2019

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Jonathan D. Greenberg United States Magistrate Judge

         Plaintiff, Sonia Gonzalez Ortiz (“Plaintiff” or “Ortiz”), challenges the final decision of Defendant, Nancy A. Berryhill, [1] Acting Commissioner of Social Security (“Commissioner”), denying her application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 416(i), 423, and 1381 et seq. (“Act”). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) and the consent of the parties, pursuant to 28 U.S.C. § 636(c)(2). For the reasons set forth below, the Commissioner's final decision is VACATED and REMANDED for further consideration consistent with this opinion.


         In August 2015, Ortiz filed an application for SSI alleging a disability onset date of August 1, 2012, and claiming she was disabled due to anemia, acid reflux, depression, anxiety, sleep apnea, precancerous changes of the vagina, “mild cropatonal right hand, ” and carcinoma of the vagina. (Transcript (“Tr.”) at 186, 217.) The applications were denied initially and upon reconsideration, and Ortiz requested a hearing before an administrative law judge (“ALJ”). (Tr. 110, 120, 125.)

         On June 28, 2017, an ALJ held a hearing, during which Ortiz, represented by counsel, and an impartial vocational expert (“VE”) testified. (Tr. 33.) On November 15, 2017, the ALJ issued a written decision finding Ortiz was not disabled. (Tr. 8-32.) The ALJ's decision became final on June 8, 2018, when the Appeals Council declined further review. (Tr. 1.)

         On July 27, 2018, Ortiz filed her Complaint to challenge the Commissioner's final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 14, 16.) Ortiz asserts the following assignments of error:

(1) The ALJ's evaluation of the medical opinion evidence - all of which plainly establishes that Plaintiff's mental impairments preclude her from working - is contrary to the regulations and Sixth Circuit precedent.
(2) The ALJ's evaluation of the functional capacity evaluation regarding Plaintiff's carpal tunnel syndrome (CTS) is contrary to the regulations and Sixth Circuit precedent.

         (Doc. No. 14.)

         II. EVIDENCE

         A. Personal and Vocational Evidence

         Ortiz was born in May 1965 and was fifty two years-old at the time of her administrative hearing, making her a “person closely approaching advanced age” under social security regulations. (Tr. 26.) See 20 C.F.R. § 416.963. She has a limited education and is able to communicate in English. (Id.) She has past relevant work as a hotel housekeeper. (Id.)

         B. Relevant Medical Evidence [2]

         1. Mental Impairments

         On September 8, 2014, Ortiz visited psychiatrist Lendita Haxhiu-Erhardt, M.D., for a medication management appointment. (Tr. 381.) Ortiz described continued depression and paranoia. (Id.) She reported hearing voices and forgetfulness. (Tr. 382.) On examination, Ortiz had a logical thought process, no evidence of paranoia, intact memory, and fair insight and judgment. (Id.) Dr. Haxhiu-Erhardt adjusted Ortiz's medications and ordered labwork. (Id.) Ortiz's labwork revealed low B12 levels, which was a possible explanation for her mood symptoms. (Tr. 347.)

         Ortiz returned to Dr. Haxhiu-Erhardt on November 10, 2014. (Id.) She reported moodiness and paranoia, but no suicidal thoughts. (Id.) On examination, Ortiz presented with an anxious mood, but displayed no evidence of paranoia and had an intact memory. (Id.)

         On December 20, 2014, Ortiz presented to the emergency room with anxiety and heart palpitations. (Tr. 412.) The emergency room physicians provided her with a dose of Atarax, an anti-anxiety medication. (Tr. 413.) Ortiz's anxiety and palpitations decreased with this medication and she was referred to a cardiologist and psychiatrist for further treatment. (Id.) Ortiz saw cardiologist Grace Cater, M.D., on January 19, 2015. (Tr. 682.) Dr. Cater noted Ortiz has recently been to the emergency room for an anxiety attack, had no significant arrhythmia, and her hypertension was controlled. (Tr. 682, 685, 686.)

         Ortiz followed up with Dr. Haxhiu-Erhardt on February 5, 2015, reporting anxiety, an inability to relax, and poor sleep. (Tr. 326.) On examination, she displayed some paranoid thoughts, anxiety, and irritability. (Id.) She was able to sustain attention and concentration and her memory was intact. (Id.)

         On February 26, 2015, Ortiz visited therapist Nellie Krawczynski, LISW, for behavioral health counseling and therapy. (Tr. 563.) She reported a history of physical abuse, anxiety in crowds, and depression. (Id.) On examination, Ortiz had a logical thought process, no psychotic thoughts, a normal memory, and an anxious mood. (Tr. 564.)

         Ortiz saw Dr. Haxhiu-Erhardt on March 31, 2015, reporting she was “a little better, ” with less anxiety and agitation. (Tr. 555.) However, she was still depressed and presented with a depressed mood. (Id.) Dr. Haxhiu-Erhardt increased Ortiz's Zoloft dosage and prescribed Seroquel and Trazodone. (Id.)

         On April 10, 2015, Ortiz visited Ms. Krawczynski for therapy. (Tr. 548.) She presented as withdrawn, but engaged. (Id.) Ortiz reported anxiety in stores and crowds, as well as worry over her family's medical history. (Id.) On examination, Ortiz had a logical thought process, but reported memory difficulties, was distractible, with a depressed mood and constricted affect. (Tr. 549.) On May 4, 2015, Ortiz reported high levels of anxiety to Ms. Krawczynski. (Tr. 519.) Ms. Krawczynski found her “somewhat difficult to engage, ” with a worried mood and blunt affect. (Id.) Ortiz's thought process was logical and her memory was within normal limits. (Id.)

         On July 14, 2015, Ortiz felt overwhelmed and stressed. (Tr. 460.) She also described “very seldom” auditory hallucinations. (Id.) On examination, she displayed no paranoia and her judgment and insight were fair. (Id.) Dr. Haxhiu-Erhardt increased Ortiz's Wellbutrin dosage. (Id.)

         On September 1, 2016, Ortiz reported to Ms. Krawczynski she had an upcoming trip to Puerto Rico to visit family but was hesitant to go. (Tr. 825.) On examination, she was anxious and her mood was depressed. (Tr. 826.) Her thought process was logical, her memory normal, and she had fair judgment and insight. (Tr. 826.) Ortiz returned to Ms. Krawcznyski on October 13, 2016, indicating she decided to go to Puerto Rico and was not certain if she would return. (Tr. 798.) On examination, she was anxious with a constricted affect, but her memory and thought processes were normal. (Tr. 799.) Ortiz visit Dr. Haxhiu-Erhardt a few days later, on October 17, 2016, reporting poor sleep, worry, and frustration. (Tr. 806.) She presented as anxious, but displayed no paranoia and a logical thought process. (Id.)

         Ortiz had another emergency room visit for heart palpitations and anxiety on October 22, 2016. (Tr. 836.) She was admitted for a cardiac evaluation. (Tr. 837.)

         Ortiz ultimately did not go to Puerto Rico, reporting to Ms. Krawcznyski she was “struck by a fear of impending doom.” (Tr. 787.) She described waking up in a panic with an inability to calm down. (Id.) On October 20, 2016, Ortiz reported she still planned on eventually returning to Puerto Rico. (Id.) On examination, her memory was normal and her thought process was logical. (Tr. 788.) Her mood remained depressed and anxious and her affect was labile. (Id.)

         On December 22, 2016, Dr. Haxhiu-Erhardt observed Ortiz continued “to have significant issues with forgetfulness” and “cannot remember simple details.” (Tr. 765.) Ortiz reported “family members keep commenting on her inability to even cook a meal.” (Id.) Dr. Haxhiu-Erhardt recommended neurological evaluation for this issue. (Id.) Ortiz also indicated she was paranoid and “hears her name being called all day long.” (Id.) On examination, Ortiz had a logical thought process, a normal memory, but some paranoia and an anxious affect and mood. (Tr. 766.)

         That same date, Dr. Haxhiu-Erhardt filled out a “Mental Impairment Questionnaire” form on behalf of Ortiz. (Tr. 862-863.) She reported treating Ortiz since 2012 and noted Ortiz was depressed, anxious, “extremely forgetful, ” “hears voices, ” and could not tolerate others. (Id.) Dr. Haxhiu-Erhardt found Ortiz had no useful ability to function in the following areas:

• maintaining attention and concentration for extended periods;
• working in coordination with or in proximity to others without being distracted by them;
• complete a normal workday and workweek without interruptions from psychologically based symptoms;
• remembering locations and work-like procedures;
• understanding and remembering detailed instructions;
• getting along with co-workers or peers without distracting them or exhibiting behavioral extremes; and
• responding appropriately to changes in the work setting.

         (Tr. 862-863.) The doctor further found Ortiz was unable to meet competitive standards in the following areas:

• carrying out detailed instructions;
• performing activities within a schedule;
• sustaining an ordinary routine without special supervision;
• performing at a consistent pace without an unreasonable number and length of rest periods;
• understanding and remembering very short and simple instructions;
• asking simple questions or requesting assistance;
• accepting instructions and responding appropriately to criticism from supervisors;
• being aware of normal hazards and taking appropriate precautions; and
• setting realistic goals or making plans independently of others.

(Id.) Dr. Haxhiu-Erhardt concluded Ortiz was seriously limited, but not precluded, from the following:

• carrying out very short and simple instructions;
• managing regular attendance and being punctual within customary tolerances;
• interacting appropriately with the general public; and
• maintaining socially appropriate behavior and adhering to basic standards of neatness and cleanliness.

(Id.) She opined Ortiz would miss three or more days of work each month and would be off-task for 50-75% of the workday, noting “this is just a guess.” (Tr. 863.)

         Ortiz returned to Ms. Krawczynski on January 12, 2017, reporting she recently visited Puerto Rico. (Tr. 872.) She indicated she was able to make it to Puerto Rico without anxiety or panic attacks. (Id.) On examination, she had a logical thought process, denied hallucinations and suicidal ideation, and her mood was depressed and anxious. (Tr. 873.) On February 16, 2017, Ortiz reported high levels of anxiety and depression to Ms. Krawcznyski. (Tr. 922.) She indicated she was currently living with her daughter, which she found anxiety-inducing. (Id.) She also relayed she was planning another trip to Puerto Rico. (Id.) On examination, ...

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