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Kentch v. Berryhill

United States District Court, E.D. Missouri, Southeastern Division

September 5, 2017

DEBORAH K. KENTCH, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG, UNITED STATES DISTRICT JUDGE

         This action is before this Court for judicial review of the final decision of the Commissioner of Social Security finding that Plaintiff Cynthia Barron was not disabled, and thus not entitled to disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. For the reasons set forth below, the decision of the Commissioner will be affirmed.

         BACKGROUND

         Plaintiff, who was born on March 15, 1959, filed her application for benefits on November 21, 2007, alleging disability beginning April 27, 2007, due to permanent vision problems caused by a stroke that she suffered in 1995. On February 1, 2008, Plaintiff's application was denied at the initial administrative level, and she thereafter requested a hearing before an Administrative Law Judge (“ALJ”).

         Initial Hearing Decision

         A video hearing was held on December 15, 2009, at which Plaintiff, represented by counsel, and a vocational expert (“VE”) testified. On January 8, 2010, the ALJ followed the five-step sequential evaluation process discussed below, and concluded that Plaintiff was not disabled because, although Plaintiff had the severe impairment of right homonymous hemianopsia[2] resulting from a cerebral hemorrhage that she suffered in 1995, the impairment did not meet or medically equal one of the deemed-disabling impairments listed in the Commissioner's regulations, and Plaintiff had the residual functional capacity (“RFC”) to perform a full range of work at all exertional levels, except that she had mild restrictions in interacting with others. The ALJ noted that, although Plaintiff complained of vision problems, she had not received any treatment; that Plaintiff's credibility at the hearing was poor and not supported by the objective medical findings; and that Plaintiff testified at the hearing that she was currently working as a substitute teacher but simply not getting paid enough, which the ALJ found was inconsistent with Plaintiff's claim of disability. The ALJ relied on the testimony of the VE to conclude that Plaintiff was capable of performing all of her past relevant work (including as a teacher, plant care worker, and library aide), and was therefore not disabled. Tr. 105-15.

         Plaintiff appealed that ALJ's decision, and on November 23, 2010, the Appeals Council of the Social Security Administration remanded the case for further consideration because, despite the ALJ's finding that Plaintiff's severe impairments included right homonymous hemianopsia, the ALJ did not include any visual limitations in the RFC he assessed for Plaintiff. Tr. 116-18.

         Second Hearing Decision

         On remand, another evidentiary hearing was held, beginning on May 3, 2011, and continuing on March 28, 2012. Plaintiff, represented by counsel, and a different VE testified, as did a friend of Plaintiff. By decision dated April 25, 2012, a second ALJ again followed the five-step sequential evaluation process and concluded that Plaintiff was not disabled. Specifically, the second ALJ found that Plaintiff had the severe impairment of left homonymous hemianopsia resulting from an intracranial hemorrhage in 1995, but that this impairment did not meet or medically equal one of the deemed-disabling impairments listed in the Commissioner's regulations. In making this finding, the second ALJ gave “significant weight” to the opinion of a non-examining medical expert, ophthalmologist Bernard Zuckerman, M.D., that Plaintiff's visual impairment did not meet or equal any of the visual impairments listed in the relevant regulations. The second ALJ then concluded that Plaintiff retained the RFC to perform certain light, unskilled jobs (mail clerk, office helper, and stock checker) that the VE testified that a person with Plaintiff's RFC and vocational factors (age, education, work experience) could perform and that were available in significant numbers in the national economy. Tr. 119-35.

         Plaintiff again appealed, and on May 15, 2013, the Appeals Council again remanded, this time finding that the second ALJ had given “significant weight” to Dr. Zuckerman's opinion but did not address a portion of that opinion which indicated that Plaintiff was not able to avoid workplace hazards, such as boxes on the floor, doors ajar, or approaching people or vehicles. The Appeals Council noted that this portion of Dr. Zuckerman's opinion was also supported by a state consultative examiner, Robert D. Lewis, M.D., who reported that he witnessed Plaintiff running into doorframes and people during his examination. The Appeals Council noted that “[u]nder Social Security Rulings 83-14 and 96-9p, the occupational bases for sedentary, light, and medium work are significantly diminished where there is a loss of visual field manifesting in tripping over boxes while working, or an inability to detect approaching persons or objects.” Tr. 136-40.

         Final Hearing Decision

         After the second remand, a final evidentiary hearing was held on June 5, 2014. Plaintiff, represented by counsel, and a different VE testified at this hearing, as did a non-examining medical expert, ophthalmologist Jeffrey A. Horwitz, M.D. By decision dated June 24, 2014, a third ALJ (referred to as the “ALJ” from here on) again followed the five-step sequential evaluation process and concluded that Plaintiff was not disabled.

         At the first step, the ALJ found that Plaintiff engaged in substantial gainful activity (“SGA”) as defined by the Commissioner's regulations, from October 2008 through June 2009, after Plaintiff's alleged onset of disability, but that there was a continuous 12-month period after the onset date during which Plaintiff did not engage in SGA because her earnings as a substitute teacher were too low.

         At step two, the ALJ found that Plaintiff had the severe impairments of migraines and left homonymous hemianopsia, which was the residual effect of a stroke Plaintiff suffered in 1995. But the ALJ concluded, at step three, that these impairments did not meet or medically equal one of the deemed-disabling impairments listed in the Commissioner's regulations. The ALJ noted that Dr. Horwitz testified that he believed Plaintiff's visual impairment did not meet, but equaled, [3] Listing 2.03A.[4] However, the ALJ relied on Dr. Horwitz's additional testimony that people with the same impairment may not necessarily have the same limitations because of differences in ability to adapt, and that Plaintiff appeared to have adapted very well, in light of the evidence that she continued to drive without any license restrictions and that she continued to substitute teach, on average, one to three days per week. The ALJ found that Plaintiff's demonstrated functional capacities showed that her visual impairment did not equal the severity of the listed impairment, and therefore gave little weight to Dr. Horwitz's opinion to the contrary.

         At step four, the ALJ found that Plaintiff had the RFC to perform less than the full range of light work as defined in the Commissioner's regulations, in that:

she is able to lift and carry ten pounds frequently and twenty pounds occasionally; she is able to sit for about six hours of an eight-hour workday; she is able to stand and/or walk for about six hours of an eight-hour workday; she is precluded from performing any work that requires binocular vision; she is limited to no more than frequent visual tasks with the better eye due to limited depth perception and field of vision; she is precluded from climbing ladders, ropes, and scaffolds; she is precluded from working around hazards such as heights, machinery, dangerous equipment, and so forth; she is precluded from work that requires driving; she is limited to less than occasional balancing; and she is precluded from work that requires frequent identification of small parts.

Tr. 19. In formulating this RFC, the ALJ considered, among other things, the 2008 opinion of state examining consultative expert Dr. Lewis; the 2011 opinion of non-examining medical expert, Dr. Zuckerman; the April 30, 2014 opinion of state consultative examining family-practice physician, Bruce Preston, M.D.; and the June 5, 2014 testimony of non-examining medical expert Dr. Horwitz.

         In separate discussions of each of these opinions, the ALJ found that some portions of the opinions were consistent with the evidence of record as a whole, including that Plaintiff was capable of light work and could read both small and ordinary print, could view a computer screen, could determine differences in shape and color of small objects, and should generally avoid driving and hazards such as heights, machinery, dangerous equipment. However, the ALJ gave little weight to other portions of the opinions.

         The ALJ noted that Dr. Lewis reported observing Plaintiff bumping into doorframes and people during his examination of Plaintiff, and that Dr. Zuckerman indicated that Plaintiff would be unable to avoid ordinary hazards in the workplace, such as boxes on the floor, doors ajar, or approaching people or vehicles. However, the ALJ gave “little weight” to this portion of Dr. Zuckerman's opinion because no provider other than Dr. Lewis had observed Plaintiff bumping into objects or people; Dr. Horwitz testified that Plaintiff could avoid such hazards by turning her head to compensate for the loss of her left visual field; and as discussed below, Plaintiff had in fact been avoiding such ordinary hazards in the ...


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