Waterman v. Commissioner of Social Security

Filing 20

REPORT AND RECOMMENDATION that the Plaintiff's statement of errors be overruled and that judgment be entered in favor of the Commissioner. Objections to R&R due by 2/13/2017. Signed by Magistrate Judge Terence P. Kemp on 1/30/2017. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Crystal Gail Waterman,

:

Plaintiff,

:

v.

:
:

Commissioner of Social
Security,
Defendant.

Case No. 2:16-cv-059
JUDGE GEORGE C. SMITH
Magistrate Judge Kemp

:
REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Crystal Gail Waterman, filed this action seeking
review of a decision of the Commissioner of Social Security
partially denying her applications for disability insurance
benefits and supplemental security income.

Those applications

were filed on May 4, 2011, and alleged that Plaintiff became
disabled on December 18, 2002.
After initial administrative denials of her claim,
Plaintiff was given a hearing before an Administrative Law Judge
on June 25, 2013, and a supplemental hearing on August 15, 2014.
In a decision dated August 28, 2014, the ALJ concluded that
Plaintiff became disabled on April 1, 2013, but not before, and
denied her application for disability insurance benefits because
her insured status expired on December 31, 2007.

However, her

application for supplemental security income was granted
effective on April 1, 2013.

That became the Commissioner’s final

decision on November 24, 2015, when the Appeals Council denied
review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on May 9, 2016.

Plaintiff filed a

statement of errors on August 25, 2016, to which the Commissioner

responded on December 12, 2016.

Plaintiff filed a reply brief on

January 17, 2017, and the case is now ready to decide.
II.

Plaintiff’s Testimony at the Administrative Hearing

Plaintiff, who was 36 years old as of the date of the first
administrative hearing and who has a high school education with
two years of trade school, testified as follows.

Her testimony

appears at pages 56-87 of the administrative record.

She

testified only at the first hearing.
At that hearing, Plaintiff described her recent work
activity.

She had worked at a pizza shop in 2010 and 2011 doing

sandwich prep and cashier work, but her eyesight got so bad she
could no longer do that job.

In 2003 she did some collections

and customer service work, and she had also worked briefly at a
grocery store and as an account manager at Rent-A-Center.

She

also left the customer service job due to vision problems.
When asked why she could not work, Plaintiff said that she
could neither sit nor stand for long periods of time, got
migraine headaches twice a week, and could not concentrate due to
floaters and flashing lights in her eyes.

The problems with

eyesight and migraines existed prior to 2007.

She had had two

surgeries in each eye and was also receiving steroid injections
every six months.

Her eyes were puffy for a week afterwards and

she also had headaches and increased eye pressure.

She could not

sit at a computer.
Plaintiff also testified that she had muscle spasms in her
back and neck.
it.

Medication reduced the pain but did not eliminate

She had also been having issues with periodic swelling in

her knees and sharp pains in her hips, which were treated with a
cortisone shot.
Counsel asked Plaintiff to estimate how long she could sit,
stand, and walk during an eight-hour work day.

She said that she

could sit for three hours with the need to stand up and walk
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around every twenty minutes, could stand for four hours with a
need to change positions every fifteen minutes, and could lift a
gallon of milk occasionally.
During the day, Plaintiff tried to avoid going outside
because of the sunlight.

She took care of her son and napped.

She was able to attend her son’s baseball games by wearing
sunglasses and sitting under a canopy.

She did laundry with help

from her son and did some light cooking.
difficult.
friends.

Vacuuming was

She visited with her parents but had no close

She could read regular print if she wore reading

glasses.
III.

The Medical Records

The pertinent medical records are found beginning at page
378 of the administrative record.

The Court will summarize only

those records which relate to Plaintiff’s statements of error.
The primary issue raised by Plaintiff is the sufficiency of
the interrogatory answers given by Dr. Richards, whom the ALJ
sent interrogatories to after the first hearing.

In his initial

responses (Tr. 1005-1011), Dr. Richards said that no clear
listing was met due to limited and incomplete records.

He said,

however, that there were “significant unresolved medical
conditions which potentially could meet or equal a Listing.”
Some issues he identified were the unreadable records relating to
Plaintiff’s vison condition, although he noted that “there was is
significant visual impairment present.”

He thought that a

summary of her visual fields and acuity in “steady state” would
be important.

In his view, “added medical evidence and

comprehensive evaluation would be necessary to go beyond this
point.”

Finally, his notes indicate concern with Plaintiff’s

uveitis (pars planitis) with a 2001 onset, stating that the
records documented “multiple medical encounters” and “many
functional complaints” of disturbed vision and discomfort.
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Additional records were then provided, including a summary
from Plaintiff’s treating opthalmologist, Dr. Opremcak.

That

summary (Tr. 1020) stated that he had been treating Plaintiff
since 2001 for bilateral intermediate uveitis; that she had been
treated with periocular corticosteroid injections; that although
they controlled her uveitis, she had “frequent recurrences of her
ocular inflammation bilaterally”; that she had surgery, which did
not resolve the uveitis; and that she had recently been diagnosed
with MS, which is a very common cause of her visual condition.
In his further evaluation, Dr. Richards considered a
different report (records from Dr. Bauerie) documenting the
diagnosis of remitting relapsing multiple sclerosis, and
concluded that Plaintiff’s impairment equaled section 11.09 of
the Listing of Impairments (which deals with MS).

He stated that

the onset date was difficult to establish because various records
showed a lack of symptoms at times and because she had also been
sporadically employed after her alleged onset date.

With those

reservations, he settled on an onset date of April 1, 2013
because the signs and symptoms he needed to find that she had a
Listing-level impairment were “difficult to establish prior to
April 2013.” (Tr. 1021-23).
Finally, as Plaintiff points out, there are records from her
opthalmologist dating from prior to the expiration of her insured
status.
during

Those records (Tr. 693-711) show that prior to and
2007 she was being treated for uveitis and pars planitis,

and that her symptoms included sharp pain in the eyes, floaters,
and photophobia.

Her visual acuity was variable.

She was

treated with steroids, which provided some relief.
IV.

The Vocational Evidence

Vocational experts testified at both administrative
hearings.

At the first hearing, Nancy Shapero was the expert,

and her testimony begins at page 81 of the record.
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She

identified Plaintiff’s past work as a clerk, a customer service
representative, a deli worker, a hotel desk clerk, and an auto
parts delivery person.

All of these are unskilled jobs and are

typically performed at the light exertional level.

Ms. Shapero

was then asked questions about a hypothetical person who could do
light work with some restrictions, could read with 3.0
magnification reading glasses, and could perform simple,
repetitive tasks.

She said that such a person could do

Plaintiff’s past work as a deli clerk, desk clerk, or customer
service representative.

A limitation on exposure to fluorescent

light would eliminate those jobs, but janitorial jobs would
remain.
Next, Ms. Shapero was asked how a requirement of a sit/stand
option would affect the person’s ability to work.

If the option

could be accommodated during normal breaks, it would not affect
the person’s ability to do Plaintiff’s past work.

If it required

more flexibility, with a break from standing once an hour for
five to ten minutes while remaining on task, the past jobs could
not be done, but the person could be a price marker, hand packer,
or assembler.

Lastly, she testified that a person off task for

20% of the time could not do any of those jobs, nor could a
person missing two days of work per month.
At the second administrative hearing, a different expert,
Casey Vass, gave some additional vocational testimony.
testimony appears beginning at page 45 of the record.

His
He first

testified that someone off task more than 10% of the day would
not likely be employable.

The same would be true of someone who

missed more than 18 days of work per year, or who took a week off
every three months.

Finally, Mr. Vass said that an employee is

generally expected to have continuous use of his or eyes in the
work place.
V.

The Administrative Law Judge’s Decision

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The Administrative Law Judge’s decision appears at pages 1328 of the administrative record.

The important findings in that

decision are as follows.
The Administrative Law Judge found, first, that Plaintiff
met the insured status requirements of the Social Security Act
through December 31, 2007.

Second, she found that Plaintiff had

not engaged in substantial gainful activity since her alleged
onset date.

Going to the next step of the sequential evaluation

process, the ALJ concluded that since her alleged onset date,
Plaintiff had severe impairments including degenerative disc
disease of the cervical, thoracic, and lumbar spine, uveitis with
pars planitis, and osteoporosis.

After April 1, 2013, Plaintiff

also suffered from remitting relapsing multiple sclerosis.

The

ALJ also found that these impairments did not, prior to April 1,
2013, meet or equal the requirements of any section of the
Listing of Impairments (20 C.F.R. Part 404, Subpart P, Appendix
1), but they did so after that date.
Moving to the next step of the sequential evaluation
process, the ALJ found that prior to her disability date,
Plaintiff could work at the light exertional level with frequent
climbing of ramps and stairs, occasional climbing of ladders,
ropes, and scaffolds, and no exposure to hazardous conditions
including unprotected heights and moving machinery.

Also, due to

her eyesight and reduced concentration, Plaintiff could do only
simple, routine tasks and required the use of 3.0 magnifying
glasses secondary to difficulty reading fine print.
With these restrictions, the ALJ concluded that Plaintiff
could, prior to April 1, 2013, do her past jobs of deli clerk,
customer service representative, and hotel front desk clerk.
Consequently, the ALJ decided that Plaintiff was not entitled to
benefits prior to April 1, 2013 and was not under a disability at
any time prior to her last insured date.

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VI.

Plaintiff’s Statement of Errors

In her statement of errors, Plaintiff raises these issues:
(1) the ALJ failed to afford Plaintiff a full and fair hearing by
failing to submit medical interrogatories to an opthalmologist;
and (2) the ALJ erred by failing to find that Plaintiff’s
conditions equaled a Listing-level impairment.

These issues are

considered under the following legal standard.
Standard of Review.

Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the
Commissioner] as to any fact, if supported by substantial
evidence, shall be conclusive. . . ."

Substantial evidence is

"'such relevant evidence as a reasonable mind might accept as
Richardson v. Perales, 402

adequate to support a conclusion'"

U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.
NLRB, 305 U.S. 197, 229 (1938)).
scintilla.'" Id.
Cir. 1976).

It is "'more than a mere

LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

The Commissioner's findings of fact must be based

upon the record as a whole.

Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th
Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.
1984).

In determining whether the Commissioner's decision is

supported by substantial evidence, the Court must "'take into
account whatever in the record fairly detracts from its weight.'"
Beavers v. Secretary of Health, Education and Welfare, 577 F.2d
383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human
Services, 755 F.2d 495, 497 (6th Cir. 1985).

Even if this Court

would reach contrary conclusions of fact, the Commissioner's
decision must be affirmed so long as that determination is
supported by substantial evidence.

Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).
A.

Full and Fair Hearing

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Plaintiff’s first claim is that the ALJ did not follow
through adequately on the need to obtain additional medical
opinions concerning the limitations imposed by her various
conditions.

The ALJ did conclude that a medical opinion was

needed, which is why interrogatories were sent to Dr. Richards
(who is not an opthalmologist).

As noted above, his first

response was that the records were not complete enough to allow
him to express an opinion.

His second response, after viewing

additional records, was to find that she equaled the Listing for
multiple sclerosis as of April 1, 2013, but not before.

He did

not, as Plaintiff points out, separately assess Plaintiff’s
functional capacity before that date, other than to say that her
limitations were not of Listing severity.

Plaintiff contends

that the ALJ needed expert medical advice on the issue of her
visual functional capacity prior to April 1, 2013, and that the
failure to obtain it requires a remand.
The ALJ found that Plaintiff did have a history of bilateral
intermediate uveitis consistent with pars planitis.

(Tr. 19).

She also noted Plaintiff’s report of the symptoms contained in
the medical records and her long history of treatment with The
Retina Group.

That history included reports both of worsening

symptoms and substantial improvement.

The ALJ concluded that the

treatments Plaintiff had received “appear to have been relatively
effective in controlling her symptoms.”

(Tr. 24).

The

administrative decision then explains the basis for that
conclusion with detailed reference to treatment notes.

Id.

It

also notes that none of the records concerning her eye condition
contain any functional limitations.

As a result, the ALJ made a

residual functional capacity evaluation that took Plaintiff’s
vision problems into account only as they related to decreased
concentration and the need to use magnifying lenses to read fine
print.

Despite this analysis, Plaintiff argues that the record

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did not permit the ALJ to make that finding without additional
expert opinion evidence due to the unusual nature of Plaintiff’s
eye impairment.
In Smith v. Comm'r of Social Security, 2010 WL 6303884, *6
(S .D. Ohio Nov 24, 2010), adopted and affirmed 2011 WL 1125031
(S.D. Ohio Mar 24, 2011), this Court said:
As the court observed in Griffin v. Astrue, 2009 WL
633043 *10 (S.D. Ohio March 6, 2009), “[t]he primary
function of a medical expert is to explain, in terms
that the ALJ, who is not a medical professional, may
understand, the medical terms and findings contained in
medical reports in complex cases.” Whether to call
such an expert to testify is generally left to the
discretion of the ALJ, see id., quoting Haywood v.
Sullivan, 888 F.2d 1463, 1467–68 (5th Cir. 1989), and
the Court may overturn the exercise of that discretion
only if it appears that the use of a medical consultant
was necessary — rather than simply helpful — in order
to allow the ALJ to make a proper decision. See
Landsaw v. Secretary of Health and Human Services, 803
F.2d 211, 214 (6th Cir. 1986), quoting Turner v.
Califano, 563 F.2d 669, 671 (5th Cir. 1977).
The Court does not doubt Plaintiff’s contention that uveitis and
pars planitis are rare disorders, but there are a number of
social security decisions where those disorders are among the
impairments from which the claimant suffered.
v. Colvin, 826 F.3d 176 (4th Cir. 2016);
2016 WL 541408 (E.D. Cal. Feb. 11, 2016).

See, e.g., Monroe

Henshaw v. Colvin,
This Court does not

believe it appropriate to adopt a hard and fast rule that when a
claimant suffers from these conditions, an ALJ must always
solicit testimony or opinions from an opthalmologist.

Further,

in this case, the records of Plaintiff’s treatment do record her
symptoms and the effectiveness of the ways in which these
conditions were treated, and they allowed the ALJ to make
findings about functional limitations.

The Court does not view

this as a case where such opinion evidence was necessary in order
for the ALJ to understand either the nature of the diseases or
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the functional limitations they impose.

That is so despite Dr.

Richards’ observation that these impairments were significant.
The ALJ made that findings as well, but had enough evidence from
which to craft a visual residual functional capacity.

Since the

ALJ did not need medical expertise to do that, and because the
ALJ thoroughly reviewed the records and reached conclusions which
a reasonable person could reach, the Court finds no merit to
Plaintiff’s first statement of error.
B.

Equaling a Listing-Level Impairment

Plaintiff’s second contention is that the ALJ erred by not
considering whether her visual impairment equaled any of the
Listings for vision problems.

She notes that although loss of

visual acuity, which is addressed in the Listing, was at times a
symptom of her impairments, she also suffered from other symptoms
like flashes, watering, pain, photophobia, and redness, which
also affected her vision and which do not correspond exactly to
any group of symptoms addressed in a specific section of the
Listing.

Further, she notes that uveitis can be associated with

inflammatory arthritis, raising the possibility that she equaled
one of the Listing sections which address arthritis.

By looking

only at the literal requirements of sections 2.02, 2.03, and
2.04, and not considering the question of equivalency, she
asserts that the ALJ committed reversible error.
It is true that, in the discussion of Plaintiff’s vision
problems, the ALJ only considered whether those problems caused
the symptoms described in the three sections of the Listing to
which Plaintiff’s brief refers.

(Tr. 17).

The ALJ concluded

that “the criteria of these sections have not been met,” id., and
did not comment of the issue of equivalency.

The Commissioner

argues that any such omission was not material because Plaintiff
has not argued or demonstrated that her combination of symptoms
could have been considered the equivalent of any of the sections
of the Listing to which she refers.
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The Court views this issue as similar to a claim that an ALJ
errs by not considering a specific section of the Listing at step
three of the sequential evaluation process.

When the

administrative decision does not discuss a section of the Listing
which appears to be pertinent to one of the claimant’s
impairments, this Court has held that error occurs if “‘it is
possible that the evidence [claimant] put forth could meet this
listing.’” Reiser v. Comm’r of Social Security, 2012 WL 6138987,
*6 (S.D. Ohio Dec. 11, 2012), adopted and affirmed 2013 WL 139890
(S.D. Ohio Jan. 10, 2013), quoting Reynolds v. Comm'r of Social
Security, 424 Fed. Appx. 411, 416 (6th Cir. April 1, 2011).
Consequently, the pertinent question here is whether there was
enough evidence of equivalence in this case to trigger a duty on
the part of the ALJ to discuss that issue.
Although Plaintiff contends that she has made “a clear
argument for equivalence,” Doc. 19, at 3, the Court does not see
it that way.

“[A]n ALJ's Listing analysis must be viewed in

light of the evidence the claimant presents.”

Moran v. Comm’r of

Social Security, 40 F.Supp.3d 896, 924 (E.D. Mich. 2014).

There

is no medical opinion in this case that the combination of
Plaintiff’s symptoms is the equivalent of any section of the
Listing, and medical equivalence is ordinarily a medical
judgment.

The state agency reviewers did not find medical

equivalence; neither did Dr. Richards.

Given the ALJ’s findings

that the impact of Plaintiff’s visual impairments was certain
restrictions in her ability to concentrate and to read fine print
- findings which the Court concludes are supported by substantial
evidence - there is no reasonable likelihood that the ALJ would
have found these same symptoms to be the equivalent of any
section of the Listing.

Based on the evidence of record, any

error committed by the ALJ in not expressly addressing the issue
of medical equivalence is harmless.
VII.

Recommended Decision
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Based on the above discussion, it is recommended that the
Plaintiff’s statement of errors be overruled and that judgment be
entered in favor of the Commissioner.
VIII.

Procedure on Objections

If any party objects to this Report and Recommendation,
that party may, within fourteen (14) days of the date of this
Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection
is made, together with supporting authority for the objection(s).
A judge of this Court shall make a de novo determination of those
portions

of the report or specified proposed findings or

recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to
object to the Report and Recommendation will result in a
waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates as a
waiver of the right to appeal the decision of the District
Court adopting the Report and Recommendation.

See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).
/s/ Terence P. Kemp
United States Magistrate Judge

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