When an administrative judge denied a plaintiff’s requests for disability benefits and supplemental security income, the ALJ (1) did not wrongly find a physician’s opinion unconvincing in determining the plaintiff’s remaining ability to function, and (2) considered evidence of absenteeism in determining the RFC of the plaintiff.
“[Plaintiff Denise Mae] Ortiz argues that because the ALJ Dr. [Steven W.] Pascal’s assessment of Ortiz’s impairments in determining her remaining ability to function and did not provide adequate justification for Dr. Pascal’s opinion was unconvincing. …Ortiz further alleges that the ALJ, upon hearing the opinion of Dr. Pascal found unconvincing in determining her remaining ability to function, misjudged her condition based on her daily activities, part-time employment and certificates of health-related limitations. …
“The ALJ stated that they took the opinion of Dr. Paskal found unconvincing because ‘the limitations in the opinion are not supported by the objective medical evidence’ and that of Drs with outpatient mental health providers.’ …
“The articulation of the ALJ supports its general adoption of the findings of the state physicians over those of Dr. Pascal on Ortiz’s range of motion and sitting (up to six hours) and walking/standing (up to four hours) times reported by state physicians. …
“Here, in determining Ortiz’s remaining viability, the ALJ provided its assessment of the power of persuasion of Dr. Pascal’s opinion adequately expressed in view of the other medical reports. Importantly, the ALJ is not bound by any particular medical opinion and is under no obligation to endorse the opinion of Dr. Paskal, Ortiz’s treating physician, more than the opinions of her other medical providers, including state agency physicians. … Accordingly, the court finds that the ALJ Dr. Pascal’s opinion was not unduly considered unconvincing when establishing Ortiz’s RFC. …
The ALJ considered evidence of absenteeism in determining Ortiz’s remaining ability to function, noting that Ortiz herself reported in November 2018 that she was working 16 to 20 hours a week and “feeling tired but” was able to get the job done”. “‘ … The ALJ also noted that Ortiz reported that ‘her pain improved overall and that she was ‘functional.’ … Although the ALJ did not specifically address Ortiz’s alleged absenteeism in its ruling, it cannot be said that it ignored or refuted evidence of absenteeism in its assessment of residual viability. While Ortiz claims that her “work capacity is far from what a full-time employee could afford,” … the ALJ’s decision and articulation of the evidence reflect his view that Ortiz is capable of performing light full-time work, himself if they have no relevant full-time employment in the past. …”
Ortiz v. Kijakazi (Lawyers Weekly No. 02-152-23) (25 pp) (Talwani, J.) (Civil Action No. 1:21-cv-10792) (March 31, 2023).
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