ORTIZ v COMMISSIONER OF SOCIAL SECURITY

Filing 27

ORDER ADOPTING MAGISTRATE JUDGE R&R AND GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT (DOC. 16, 19, 21) Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CARRIE L. ORTIZ,
Plaintiff,

Case No. 18-10867

v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
___________________________________/

HON. AVERN COHN

ORDER ADOPTING MAGISTRATE JUDGE R&R AND GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT (DOC. 16, 19, 21)
I. INTRODUCTION
This is a social security case. Plaintiff, Carrie L. Ortiz, appeals the final decision
of the Social Security Commissioner denying her application for Disability Insurance
Benefits and Supplemental Security Income under the Social Security Act. The case
was referred to a magistrate judge. (Doc. 21). After review of the motions, pleadings
and ALJ decision, the magistrate judge recommended (“MJRR”) Ortiz’s motion for
summary judgment be denied and the Commissioner’s motion for summary judgment
be granted. Ortiz has filed objections to the MJRR, and the Commissioner has filed a
response. (Doc. 22, 24). For the reasons that follow, Ortiz’s motion will be denied, and
the Commissioner’s motion will be granted.
II. BACKGROUND
A. Procedural History
Plaintiff, Carrie L. Ortiz (“Ortiz”), filed an application for Disability Insurance
Benefits, alleging a disability onset date of September 30, 2012. (Doc. 10, 23). Ortiz

was ultimately denied benefits by an Administrative Law Judge (“ALJ”) and was
denied review by the Appeals Council.
After a hearing, at which Ortiz and a vocational expert testified, the ALJ
found that Ortiz did not qualify for benefits under the Social Security Act. The
Appeals Council denied review, making the ALJ’s decision the final decision of
the Social Security Commissioner. Ortiz then commenced this action for district
court review. After referral to a magistrate judge, the parties filed cross motions
for summary judgment. The magistrate judge issued a report and
recommendation, recommending that Ortiz’s motion be denied, the
Commissioner’s motion be granted and the ALJ’s decision be affirmed. Now
before the Court are Ortiz’s objections to the MJRR (Doc. 22) and the
Commissioner’s response (Doc. 24).
B. ALJ Findings and Medical Evidence
Ortiz claims a disability onset date of September 30, 2012. (Doc. 10, 23).
Ortiz’s disability is a culmination of mild to moderate injuries to her nervous
system; bilateral carpal tunnel syndrome; posttraumatic stress disorder;
depressive disorder; adjustment disorder with mixed anxiety and depressed
mood; irritable bowel syndrome; hypertension; pain disorder associated with both
psychological factors and general medical conditions; insomnia;
temporomandibular joint disorder; and history of eczema. (Doc. 21). The ALJ
applied the five-step process in determining whether Ortiz has a disability within
the meaning of the Social Security Act. 20 C.F.R. § 404.1520(a)(4).
At step one, the ALJ determined that Ortiz had not engaged in substantial
gainful activity since the onset date of September 30, 2012. (Doc. 10).

At step two, the ALJ found that Ortiz’s impairments were sufficiently severe.
At step three, the ALJ evaluated Ortiz’s impairments and concluded that none of
her impairments, alone or in combination, met or medically equaled the severity of a
listed impairment in 20 C.F.R. Part 404, Subpart P, Appx. 1. A positive finding at step
three renders the claimant disabled per se and ends the analysis. A negative finding,
like the one here, does not automatically bar the claimant from benefits; rather the fact
finder must continue to steps four and five to determine ability to work.
At step four, the ALJ found that Ortiz had the residual functional capacity to
perform sedentary work subject to limitations:
Ortiz requires unskilled work with one, two, or three-step instructions in a non-fastrate production environment, defined as involving no conveyor belt or assembly line
work; she can only have occasional and superficial contact with co-workers and
supervisors; she cannot have any interaction with the general public; she requires
only low-stress environments with only occasional changes in work setting. She can
carry five pounds frequently, and ten pounds occasionally; she can stand and/or
walk for a total of two hours in an eight-hour workday, but only for fifteen minutes at
a time; she can sit for a total of six hours in an eight-hour workday, but only for a
half-hour at a time. She can perform pushing and pulling motions with the
aforementioned weight restrictions for no more than two-thirds of an eight-hour
workday; she needs to be restricted to a ‘relatively clean’ work environment,
meaning stable temperatures, stable humidity, and good ventilation that allows her
to avoid concentrated exposure to dusts, fumes, gases, odors, and other pulmonary
irritants. Lastly, she also requires that, in addition to normal breaks, she is off-task
for up to nine percent of an eight-hour workday.
(Doc. 21). The ALJ found that Ortiz was not capable of performing her past relevant
work as a bartender/waitress or teacher’s aide.
At the final step, after considering Ortiz’s age, education, work experience, RFC
and the testimony of the vocational expert, the ALJ determined that there were a
significant number of jobs that Ortiz could perform, including positions as a sorter and
bench assembler.

On appeal, the magistrate judge reviewed the ALJ decision and found that
it was supported by substantial evidence.
C. Ortiz’s Objections to the MJRR
Ortiz has three objections to the MJRR. (Doc. 22). First, Ortiz says that the
magistrate judge failed to properly weigh the opinion of her treating physical
medicine specialist, Todd Best M.D. (Doc. 16). She says that in his notes, Dr.
Best writes that she requires replacement services such as cooking, cleaning,
transportation, childcare and pet care because she cannot perform them on a
sustained basis.1 She says that Dr. Best’s notes satisfy the definition of a medical
opinion because it reflects his judgment about the nature and severity of her
impairments.
Second, Ortiz says that the magistrate erred by accepting the vocational
expert’s testimony regarding the bench assembler position as consistent with the
Dictionary of Occupational Titles (DOT). She says that, as per the DOT, a bench
assembler is required to frequently handle parts. However, she says that she can
only work for less than two-thirds of the average workday, which is considered
‘occasional’. She says that she cannot perform the activities of a bench
assembler within the limits of her residual functional capacity.
Third, Ortiz says that it is mathematically impossible to perform a full day
of work with the sit and stand time-limitations included in her residual functional
capacity (Doc. 22). She says that the residual functional capacity offered by the

1
Sustained work meaning eight hours per day, five days per week. Hines v. Barnhart,
453 F.3d.559 (4th Cir. 2006).

ALJ would only provide for a maximum of six hours of work, which would not satisfy a
complete eight-hour workday.
III. STANDARD OF REVIEW
This Court has original jurisdiction to review the Commissioner’s final
administrative decision pursuant to 42 U.S.C. § 405(g). Judicial review under this
statute is limited in that the court “must affirm the Commissioner’s conclusions absent a
determination that the Commissioner has failed to apply the correct legal standard or
has made findings of fact unsupported by substantial evidence in the record.”
Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005); Walters v.
Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). This Court may not reverse
the Commissioner’s decision merely because it disagrees or because “there exists in
the record substantial evidence to support a different conclusion.” McClanahan v.
Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006); Mullen v. Bowen, 800 F.2d
535, 545 (6th Cir. 1986) (en banc ). “The substantial evidence standard presupposes
that there is a ‘zone of choice’ within which the Commissioner may proceed without
interference from the courts.” Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994)
(citations omitted), citing Mullen, 800 F.2d at 545. Wilkerson v. Commr of Soc. Sec.,
278 F Supp 3d 956, 967 (ED Mich 2017).
The portions of the MJRR that the claimant finds objectionable are reviewed de
novo. See 28 U.S.C. § 636(b)(1)(C); Herriman v. Apfel, 66 Soc. Sec. Reptr. Serv. 588,
2000 WL 246598, *1 (E.D.Mich.2000).

IV. DISCUSSION

The Court finds that the MJRR is an accurate, well-reasoned review of the
record. The MJRR is adopted in its entirety. The Court need only address Ortiz’s
specific objections at this stage of the case, and articulate reasons for why Ortiz’s
objections are overruled.
A. First Objection
Ortiz says that the magistrate judge failed to properly weigh the opinion of
her treating physical medicine specialist, Todd Best M.D. She says that Dr. Best
noted that she required replacement services for cooking, cleaning,
transportation, childcare and pet care because she could not perform them on a
sustained basis. She says that Dr. Best’s notes are synonymous with a medical
opinion, as it reflects his judgment about the nature and severity of her
impairments.
However, the MJRR was correct in finding that Dr. Best’s observations did
not equate to a medical opinion. “A treating physician’s opinion is only entitled to
such special attention and deference when it is a medical opinion.” Turner v.
Comm’r of Soc. Sec., 381 Fed.Appx. 488, 492-93 (6th Cir. 2010) (citing §§
404.1527(d). 416.927(d)) (emphasis in original). A doctor’s underlying treatment
notes generally do not constitute “medical opinions.” Terrell v. Comm’r of Soc.
Sec., 2013 WL 6192673 (E.D. Mich. 2012). In addition, the determination that an
individual is “unable to work” is not a medical opinion, as it is the opinion of an
issue reserved to the Commissioner. Dutkiewicz v. Comm’r of Soc. Sec., 509
Fed.Appx. 430, 432 (6th Cir. 2016); see Bass v. McMahon, 499 F.3d. 506, 511
(6th Cir. 2007) (“no special significance will be given to opinions of disability,

even if they come from a treating physician.”). Accordingly, Ortiz’s first objection is
overruled.
B. Second Objection
Ortiz says that the magistrate judge erred by accepting that the vocational
expert’s testimony regarding the bench assembler position was consistent with the
DOT. She says that a bench assembler is required to frequently handle parts, and that
working less than two-thirds of the average workday is considered ‘occasional’. She
says that as a result, she is unable to perform the duties of a bench assembler within
the limits of a residual functional capacity.
However, the evidence supports the proposition that Ortiz can perform the duties
of a bench assembler as identified by the vocational expert; see DOT, 521.687-086,
1991 WL 674226. The job of a bench assembler does not require fine or gross
manipulation or reaching for more than two-thirds of a workday; rather, it requires
reaching for up to two-thirds of a workday. Id. Thus, the job of bench assembler
comports with the limitations placed on Ortiz (Doc. 24). Ortiz’s second objection is
overruled.
C. Third Objection
Lastly, Ortiz says that it is mathematically impossible to perform a full day of work
with the sit and stand time-limitations included in her residual functional capacity (Doc.
22). She says that the residual functional capacity described by the ALJ will only provide
for a maximum of six hours of work, which does not satisfy a complete eight-hour
workday.
Ortiz is limited to walking or standing for a total of two hours, but for a maximum
15 minutes at a time. In addition, she can sit for a total of six hours, but only for a half-

hour at a time. As the Commissioner has outlined in response to this objection, it is
possible for Ortiz to satisfy these limitations in the average eight-hour workday. (Fig. 1).
Ortiz can alternate between walking/standing for 7.5 minutes and sitting for a half-hour
for the first five hours of a workday. This equates to a total of one hour of walking and
four hours of sitting. For the remaining three hours, Ortiz can alternate between
walking/standing for 15 minutes and sitting for a half-hour. This equates to an eight-hour
workday—two hours of walking/standing; six hours of sitting.
Figure 1. Commissioner’s Example Schedule
Position

Time

Walk/Stand 9:00am 9:07am
Sit

Sit

Walk/Stand 11:45am –

Sit

Sit

11:52am –

Walk/Stand 12:22pm –

Sit

12:30pm –

Walk/Stand 2:52pm –
3:07pm
BREAK

Sit

10:22am -

3:52pm

4:07pm

1:00pm –
1:30pm

Sit

10:37am
10:37am –
11:07am
Walk/Stand 11:07am –
11:15am

3:22pm –

Walk/Stand 3:52pm –
LUNCH

Sit

3:07pm
3:22pm

1:00pm

10:22am

2:22pm –
2:52pm

12:30pm

Walk/Stand 10:15am –

BREAK

Sit

12:22pm

9:45am –
10:15am

2:22pm

11:52am

Walk/Stand 9:37am 9:45am

Walk/Stand 2:07pm –

11:45am

9:07am 9:37am

11:15am –

Walk/Stand 1:30pm –
1:37pm
Sit

1:37pm –
2:07pm

4:07pm –
4:37pm

Walk/Stand 4:37pm –
4:52pm
Sit

4:52pm –
5:00pm

Sitting: 5 hours, 8 minutes; Walking: 1 hour, 52 minutes; Break: 1 hour; Total: 8 hours.

Ortiz is not limited to the Commissioner’s suggestion. There are several
variations that permit an eight-hour workday that comport to her limitations. See (Fig. 2).
Figure 2. Court’s Example Schedule
Position

Time

Walk/Stand 9:00am 9:10am
Sit

Sit

Walk/Stand 11:55am –

Sit

Sit

BREAK

12:05pm –

Walk/Stand 12:35pm –

Sit

12:45pm –

Walk/Stand 3:05pm –
3:15pm
BREAK

3:15pm –
3:30pm

Sit

3:30pm –
4:00pm

1:15pm

10:35am

2:35pm –
3:05pm

12:45pm

10:20am –

Walk/Stand 10:35am –

Sit

12:35pm

9:50am –
10:20am

2:35pm

12:05pm

Walk/Stand 9:40am 9:50am

Walk/Stand 2:25pm –

11:55am

9:10am 9:40am

11:25am –

Walk/Stand 4:00pm –
LUNCH

10:45am

4:10pm

1:15pm –
1:45pm

Sit

4:10pm –
4:40pm

Sit

10:45am –

Walk/Stand 1:45pm –
1:55pm

11:15am
Walk/Stand 11:15am –
11:25am

Walk/Stand 4:40pm –

Sit

1:55pm –
2:25pm

4:50pm
Sit

4:50pm –
5:00pm

Sitting: 5 hours, 10 minutes; Walking: 1 hour, 50 minutes; Break: 1 hour; Total: 8 hours.
At oral arguments, Ortiz says that the ALJ stated that she had to be off-task for
9% of the day. In addition, Ortiz says that it takes up to 90 seconds to adjust herself

between standing and sitting, which takes up another 8% of the day. She says that in
total, this requires her to be off-task for 17% of the day, which is work-preclusive.
However, Ortiz offers no evidence to support that it takes 90 seconds to switch
between sitting and standing. Typically, it takes a negligible amount of time to switch
between sitting and standing. If Ortiz has to adjust herself for 8% of the day when
switching positions, as a result of her symptoms, that is contemplated within the 9% offtask figure expressed by the ALJ.
Although it is possible for Ortiz to work an eight-hour day, the Court is
concerned that it is not practicable. Ortiz’s objection has merit; it would be difficult to
maintain such a work schedule. That being said, the Court may not reverse the
Commissioner on these grounds. The statute is clear; if work exists in the national
economy that the claimant could adjust to, then the claimant is not disabled under the
statute, and is not entitled to benefits. 20 C.F.R. § 404.1566. The statue states:
We will determine that you are not disabled if your residual functional
capacity and vocational abilities make it possible for you to do work
which exists in the national economy, but you remain unemployed
because of: [y]our inability to get work…[t]he hiring practices of
employers…[or] [y]ou do not wish to do a particular type of work.
§404.1566(c)(1)-(8) (emphasis added). Nor will the Commissioner consider whether the
claimant “would be hired if [the claimant] applied for work.” § 404.1566(a)(3).

The

standard is simply whether or not it is possible for the claimant to perform work that exists
in the national economy.
Since it is possible for Ortiz to perform work in the national economy, as a bench
assembler, there is substantial evidence in the record to support the Commissioner’s
decision.

V. CONCLUSION
For the reasons stated above, the MJRR is adopted in its entirety, Ortiz’s motion
for summary judgment (Doc. 16) is DENIED, the Social Security Commissioner’s motion
for summary judgment (Doc. 17) is GRANTED, and this case is DISMISSED
SO ORDERED.

s/Avern Cohn
_
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: August 21, 2019
Detroit, Michigan