Anair v. Commissioner of Social Security
Filing
17
OPINION AND ORDER Granting 8 Plaintiff's Motion for Order Reversing the Decision of the Commissioner and Denying 12 Defendant's Motion for Order Affirming the Decision of the Commissioner. Signed by Chief Judge Christina Reiss on 8/26/2015. (pac)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
ALFRED GEORGE ANAIR,
Plaintiff,
v.
CAROLYN W. COLYIN,
Acting Commissioner of Social Security,
Defendant.
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20\5 AUG 26 PM 4: 01
BY-.--;·DEPUl \'
Case No. 2:14-cv-169
OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR
JUDGMENT REVERSING THE DECISION OF THE COMMISSIONER
AND DENYING DEFENDANT'S MOTION FOR ORDER AFFIRMING
THE DECISION OF THE COMMISSIONER
(Docs. 8 & 12)
Plaintiff Alfred George Anair is a claimant for Social Security Disability
Insurance Benefits ("DIB") and Supplemental Social Security Income ("SSI'') under the
Social Security Act. He brings this action pursuant to 42 U.S.C. § 405(g) to reverse the
decision of the Social Security Commissioner that he is not disabled. Plaintiff filed his
motion (Doc. 8) on December 29, 2014, and the Commissioner filed her motion to affirm
(Doc. 12) on March 30, 2015. Plaintiff submitted his reply brief on April 19, 2015.
(Doc. 15.) The appeal was reassigned on June 9, 2015 (Doc. 16), at which time the court
took the matter under advisement.
Plaintiff is represented by Arthur P. Anderson, Esq. The Commissioner is
represented by Assistant United States Attorney Monika K. Crawford.
I.
Procedural History.
Plaintiff filed for DIB and SSI in July 2011. His claims were originally denied on
September 7, 2011, and upon reconsideration on November 18, 2011. Plaintiff timely
requested a hearing, which was held on January 3, 2013, before Administrative Law
Judge ("ALJ") Dory Sutker. Plaintiff appeared with counsel, and Plaintiff and vocational
expert Howard Steinberg testified. On February 11, 2013, ALJ Sutker issued a written
decision finding Plaintiff was not disabled under the Social Security Act. Plaintiff timely
requested review, and on June 4, 2014, the Appeals Council denied Plaintiffs request for
review, making ALJ Sutker's February 11,2013 decision the Commissioner's final
decision. Plaintiff timely filed the present action, and his claim is ripe for judicial review
pursuant to 42 U.S.C. § 405(g).
II.
Factual Background.
Plaintiff is a forty-two year old man. He alleges a disability onset date of February
14, 2010, resulting from an injury to his left eye and related symptoms. Plaintiff is lefthanded and left-eye dominant. Plaintiff completed schooling through the ninth grade,
thereafter attained his G.E.D. Plaintiffs past work included an assembler of railroad
cars, a carpenter, and a logger.
A.
Plaintiff's Physical and Mental Health Treatment History.
On February 14, 2010, Plaintiff was working at home on a machine battery when
it exploded. His vision immediately "went black." (AR 414.) He was first treated by Dr.
Stephen Phipps, of Eye Associates ofNorthern New England, who observed "an open
wound" in Plaintiffs left eye. !d. ACT scan revealed an "intraocular foreign body." !d.
Dr. Phipps sent Plaintiff to the Dartmouth-Hitchcock Medical Center ("DHMC") for
further treatment, at which time Plaintiff reported aching in his left eye with a pain level
of an eight out often. He noted, however, that his vision had returned "slightly." !d. He
underwent two surgeries at the DHMC based on a primary diagnosis of a "ruptured
globe" and a secondary diagnosis of "traumatic cataract, vitreous hemorrhage, an
intraocular foreign body, peripapillary subretinal hemorrhage, choroidal hemorrhage,
[and] retinal dialysis." (AR 410.) DHMC reported Plaintiff"did well with first surgery
[for] repair of ruptured globe" and "tolerated" the second surgery to remove the foreign
object, but thereafter had nausea, vomiting, and pain. !d.
On March 3, 2010, Plaintiff saw Dr. Christopher Chapman for a post-operative
evaluation. Plaintiff reported pain in his left eye rated by him as a seven out of ten on
2
average but that he was "having significant time during each day in which there was near
complete relief." (AR 407.) While he reported that he experienced "some photopsias in
his peripheral vision," he listed no other symptoms involving his left eye. !d. Dr.
Chapman noted that Plaintiffs primary concern was pain management and that Plaintiff
interrupted him "at each and every step in the patient encounter regarding pain
management and other eye care concerns." !d. Noting that Plaintiff was "consumed with
the issue regarding pain management," Dr. Chapman assessed subjective complaints of
pain, as well as minimal inflammation. (AR 408.) Dr. Chapman explained to Plaintiff
that his pain following "such an extensive injury" would be "significant and frustrating"
but that his Vicodin prescription should be sufficient to treat his pain over the next week.
!d. Plaintiff informed Dr. Chapman after the visit that he preferred to see Dr. Phipps, the
physician who had first treated Plaintiff immediately after his injury.
On March 11, 2010, Plaintiff visited Dr. Michelle Young at the Retina Center of
Vermont. Plaintiff reported "aching in the [left] eye when he trie[d] to work at seeing";
that his vision was "not good"; that he could see a gas bubble in his eye; that his
symptoms were constant, with flashing at times; and that his pain was improving. (AR
400.) Dr. Young's examination revealed Plaintiffs left eye showed no signs of infection,
threatening pressure, retinal detachment, or other major complications. She noted,
however, that his left eye lens and aspects of his cornea were "irregular." (AR 404.) She
advised Plaintiff to limit himself to "light physical activity" and to call if he experienced
increasing discomfort that was not relieved by Tylenol or a comparable over-the-counter
pain medication. (AR 405.)
On March 25, 2010, Plaintiff returned to Dr. Young, reporting "that if he let[] eye
'hang' he [could] see through bubble," with flashing that "comes and goes," but that his
pain was "getting better" and there was "no pain in eye." (AR 392, 395.) Dr. Young's
examination of Plaintiffs eye yielded observations similar to those she noted on March
11, with the exception that his left eye vision improved to 20/160.
On March 16, 2010, Plaintiff saw his primary care physician, Dr. Mark
Lichtenstein. At that time, Plaintiff was using "minimal pain pills," could not lift over
3
twenty pounds, and could "feel[] it in his eye" when he tried to lift "something heavy."
(AR 549.) Dr. Lichtenstein examined Plaintiffs eye and found no cloudiness, active
inflammation, or discharge and that "everything look[ed] fairly calm." !d. He noted,
however, that Plaintiff was "essentially completely blind in his left eye" and that Plaintiff
kept his "eyelid closed most of the time" because he was not able to "open it wide." !d.
Dr. Lichtenstein opined that Plaintiff would be "unable to work" for the following six
months and "from then on [he] would hope [Plaintiff] would be able to work." !d.
On April 22, 2010, Plaintiff saw Dr. Young at the Retina Center. He reported "not
a lot of pain," but that using his left eye caused increased pain and headaches, that driving
was "a bit difficult," and that he was scared to work on staging. (AR 384, 387.)
Plaintiff returned to Dr. Lichtenstein on May 25, 2010, reporting his pain was
controlled but that he still was not able to return to work and that he was experiencing a
lot of anxiety and fear when, for example, working from a roof or in the woods. Dr.
Lichtenstein noted that Plaintiffs left eye was "shut nearly all the time" and that Plaintiff
could only "make out fuzziness of figures" and "some colors." (AR 585.) Dr.
Lichtenstein concluded Plaintiff had not "adapted to one-eye living" and was "still
disabled" since he could not work. !d.
On June 3, 2010, Plaintiff saw Dr. Young, complaining that his left eye was
"[ m]ore light sensitive," that he had no depth perception, that he tried to keep his left eye
closed entirely "due to distortion" and constant headaches, and that he could not function
with his left eye open because "[e]verything" was constantly a "smear." (AR 376, 37980.)
Four days later, Plaintiff saw Dr. Phipps, who noted Plaintiff was "stable from a
retinal standpoint" and was taking no medications. (AR 451.) Dr. Phipps observed
irregularities on examination of Plaintiffs left eye and that his left eye vision was 20/400
uncorrected and 20/50 corrected. Dr. Phipps requested a consultation with the
Ophthalmic Consultants of Boston, and Plaintiff underwent a consultation with Dr.
Nicoletta Fynn-Thompson on July 21, 2010, to discuss surgery options. At that time,
Plaintiff reported decreased vision and significant symptoms of glare. Dr. Fynn4
Thompson noted Plaintiffs left eye vision was 20/400 uncorrected and 20/80 corrected.
She also observed that his iris was "completely missing," which precluded reconstructive
surgery of his pupil. (AR 447, 731.)
In July through September of2010, Plaintiff saw Dr. Lichtenstein. In July, Dr.
Lichtenstein determined that Plaintiff was "unable to have binocular vision" 1 and that his
vision in his left eye was still "seriously compromised" from his injury. (AR 666.) He
noted Plaintiff had residual pain and dizziness and remained unable to return to work as a
logger or laborer.
On August 3, 2010, Plaintiff reported that he experienced pain and pressure when
leaning over, had no binocular vision, was "having a hard time" and "a lot of fatigue,"
and was unable to drive and do his regular work in the woods. (AR 582.) Dr.
Lichtenstein determined that Plaintiff was "functionally blind" in his left eye, was
"unable to return to normal work," and was at that time unable to adjust to his loss of
vision in order to apply to a "menial job." !d.
On August 17, 2010, Dr. Lichtenstein offered the same assessment that Plaintiff
was unable to work and remained "functionally blind." (AR 580.) He observed that
Plaintiffs left pupil appeared "abnormal" and that Plaintiff was better off not using his
left eye because use disrupted his depth perception. !d. Plaintiff reported significant
fatigue and some pain, but Dr. Lichtenstein believed this pain did not warrant a
prescription. He encouraged Plaintiff to try occupational therapy because Plaintiff had
not yet "adapted to his present vision problem." !d.
On September 8, 2010, Dr. Lichtenstein again noted Plaintiffwas unable to return
to "regular work"; however, he also noted that Plaintiffs pain was "completely abated,"
that he was not taking pain medication, and that he would be able to return to work in
December 2010. (AR 578.) Dr. Lichtenstein observed that Plaintiffs left iris was
abnormal and that his pupil was irregular and non-reactive.
1
Binocular vision means "[a]dapted to the use of both eyes," in contrast to monocular vision,
which means "affecting" or "visible by one eye only." Stedman's Medical Dictionary 219, 1223
(28th ed. 2006).
5
Following consultation with Dr. Fynn-Thompson and Dr. Lichtenstein, Plaintiff
underwent surgery on September 14, 2010 to implant a secondary intraocular lens and to
remove a conjunctival cyst from his left eye. Plaintiff left the operation in "satisfactory
condition" (AR 712), but reported feeling like he "got shot in the head" in the week
following the surgery. (AR 761.) Plaintiff thereafter followed up in October 2010 with
both Dr. Fynn-Thompson and Dr. Lichtenstein, reporting to Dr. Fynn-Thompson that his
vision, balance, and depth perception had "slightly improved." (AR 446.) He further
reported, however, that his "terrible headaches" continued even after the surgery and that
he had a headache for the previous two or three days. (AR 698; see also Doc. 8-1 at 10 &
n.4.) Dr. Fynn-Thompson noted Plaintiffs left eye vision was 201100 uncorrected and
20/70 corrected, and she recorded borderline intraocular pressure, a trace residual
conjunctival infection, and vitreous hemorrhage of Plaintiffs left eye.
During this same time period, Dr. Lichtenstein observed that Plaintiffs left eye
looked "much better than before" but with some irregularity and a small cyst on the
cornea. (AR 575.) Plaintiff reported that he felt pressure in his left eye if he lifted
something heavy, and Dr. Lichtenstein noted Plaintiff continued to have sensitivity to
lifting, pressure, and pain in his left eye that was controlled with "minimal" medicine. !d.
Dr. Lichtenstein recorded that Plaintiff was on "half-duty" and was released to lift over
ten pounds, but no more than twenty pounds. !d. Dr. Lichtenstein determined that
Plaintiff had "no functional vision" without the use of his right eye, that he was currently
unable to return to his prior work as a logger, and that he would not be able to return to
heavy work before April 2011. !d.
On November 10, 2010, Plaintiff followed up with Dr. Fynn-Thompson. He
reported no improvement in vision from the October visit but noted that his balance was
slightly better. Dr. Fynn-Thompson recorded that Plaintiffs vision remained 20/100
uncorrected in the left eye.
On November 29,2010, Plaintiff saw Dr. Phipps. Plaintiff reported that he was
"off balance" and experienced headaches that started over his left eye, occurred two to
three times per week, and lasted two days. (AR 440.) That same week, Plaintiff returned
6
to Dr. Young at the Retina Center. He reported that his vision was "like looking through
wax paper" but was "better than it was." (AR 368.) He further reported "bad headaches
from his eye," no depth perception, and that he had a "very hard time with glare" and was
"[m]ore light sensitive." (AR 368, 371.) Dr. Young noted that the iris of Plaintiffs left
eye was "irregular" and that he kept his left eye "closed." (AR 369, 372.)
On December 9, 2010, Plaintiff saw Dr. Lichtenstein, reporting that he could not
return to regular work or do any physical work because of pain in his left eye when he
worked or put his head down. Plaintiff further reported that he did not have binocular
vision but that his reading ability had improved. Dr. Lichtenstein's examination revealed
that Plaintiffs left pupil was "grossly abnormal" with an "odd" color. (AR 573.) Dr.
Lichtenstein determined that Plaintiffs left eye was "functionally blind." ld. Dr.
Lichtenstein also determined that Plaintiff could lift only ten to fifteen pounds and was
unable to bend over regularly due to pressure in his eye, which precluded work as a
logger. He noted that he hoped Plaintiff could return to his regular work by the end of
March of 2011, and that Plaintiff should "slowly progress" in the interim. !d.
On January 17, 2011, Plaintiff returned to Dr. Phipps, complaining that his left eye
"ache[ d]" in the cold, but that he felt "a lot better," which he attributed to the fact that he
had mostly stayed inside since his last visit with Dr. Phipps. (AR 436.) He informed Dr.
Phipps he was going to return to logging the next day. He followed up with Dr. Phipps
on January 19, 2011, because he had experienced eye pain and throbbing after logging
the previous day that had improved by that morning. He described to Dr. Phipps that he
saw red "a lot" and that the cold "really" bothered him. (AR 434.) He believed that his
left eye "seem[ed]" fine ifhe did not "do anything" but "everything" seemed to bother it.
ld. He followed up again with Dr. Phipps on January 24, 2011, reporting throbbing pain,
seeing red "more constant[ly ]," that the cold bothered him, that he had to take medication
for the pain, and that he could not drive. (AR 432.) Dr. Phipps recommended that
Plaintiff return to see Dr. Fynn-Thompson.
On January 31, 2011, Plaintiff saw Dr. Fynn-Thompson and told her that he
experienced "significant pain" after returning to work, decreased vision as a result of the
7
pain, and seeing "red" at night. (AR 462.) He reported using pain medication to treat his
"excruciating" symptoms. !d. Dr. Fynn-Thompson diagnosed ocular surface irritation
due to dry eye that developed during the day and glaucoma in the left eye due to damage
that was stable on his current medication. She believed that Plaintiff was "doing well"
following his surgery, although she noted Plaintiffs left eye vision was 20/100
uncorrected. !d. She prescribed Restasis twice a day and advised Plaintiff to use Systane
Balance six times a day and to continue his glaucoma drops.
On February 3, 2011, Plaintiff saw Dr. Peter Sher. 2 Dr. Sher noted that Plaintiff
had returned to work but saw red out of his left eye and developed intense pain while
working. Plaintiff reported taking 20 mg of narcotic pain medication for "excruciating"
pain that would develop after three to four hours ofwork. (AR 571.) Plaintiff also
reported feeling depressed because he wanted to return to full time work but he could not
due to the pain. Dr. Sher noted that Plaintiff"became tearful" when describing his
inability to work, and Dr. Sher diagnosed possible depression. !d. Dr. Sher also opined
that Plaintiff was "disabled," stemming from complications with his left eye, and that
Plaintiff should not lift "anything." !d.
On February 7, 2011, Plaintiff saw Dr. Phipps. Plaintiff reported reduced redness
in vision and "feeling ok" because he had not worked since his last visit. (AR 430.)
Plaintiff followed up with Dr. Phipps on February 21, 2011, reporting no pain or redness
in his vision but that the surface of his left eye did not feel '"quite right."' (AR 428.) He
stated that he was taking "it easy a lot" and was not working, which he thought
contributed to his improved symptoms. !d.
On February 24, 2011, Plaintiff returned to Dr. Sher, who noted that Plaintiff was
experiencing consistent pain in his left eye when exposed to wind or cold or when lifting.
Plaintiff further described decreased "visual acuity" when he worked that would take
days thereafter to return to normal. (AR 568.) Plaintiff stated that he tried multiple times
to return to work but that work caused left eye pain that necessitated taking 20 to 30 mg
ofHydrocodone. Dr. Sher noted that Plaintiffs left pupil could not constrict to block out
2
It appears that Dr. Sher works in the same practice as Dr. Lichtenstein.
8
sunlight and that his left eye was "grossly abnormal" with no retina and no reaction to
light. !d. Dr. Sher again expressed his belief that Plaintiff was "disabled," noting that
Plaintiff could return to his previous occupation only by treating his pain with narcotic
medications, which were dangerous to use in that occupation and which exposed Plaintiff
to "addiction risks." !d. Dr. Sher indicated he would support Plaintiffs application for
disability and vocational training.
In February 2011, Dr. Phipps requested that Plaintiff follow up with Dr. FynnThompson because of Plaintiffs "intermittent aching and pain" and "red vision" that
"seemed to be directly related to the amount of work" Plaintiff tried to do. (AR 681.) On
March 14, 2011, Plaintiff followed up with Dr. Fynn-Thompson. Plaintiff reported that,
since his last visit, he had not been working as a logger, had not been taking pain
medication, and had experienced no pain or discomfort, except for "a mild pressure
sensation on the left eye." (AR 678.) He also described feelings of"heaviness" and
"cl[o]udiness." (AR 675.) Dr. Fynn-Thompson noted significantly elevated intraocular
pressure in the left eye, and she again diagnosed glaucoma due to damage. She noted
Plaintiff had "photophobia." 3 (AR 675.) She also diagnosed surface irritation and dry
eye as the source of his discomfort in his left eye and that exposure in the work
environment was a factor causing irritation, noting that Plaintiff confirmed that his
symptoms were worse when outside and over the course of the day. For this reason, Dr.
Fynn-Thompson supported vocational training so Plaintiff was not "prone to have so
much exposure" to irritants. (AR 679.) She continued his current medications and
prescribed an additional medication to reduce intraocular pressure.
On April1, 2011, Plaintiff saw Dr. Krista Haight, who practices with Dr. Phipps.
Dr. Haight noted Plaintiff was "very photophobic" and was experiencing red vision and
3
Photophobia, or photalgia, refers to "[l]ight-induced pain, especially of the eyes." Stedman's
Medical Dictionary 1489, 1490 (28th ed. 2006); see also Matts v. Barnhart, 2007 WL 187688, at
*2 n.5 (S.D.N.Y. Jan. 22, 2007) ("Photophobia is 'abnormal visual intolerance to light."')
(quoting Dorland's Illustrated Medical Dictionary 1287 (27th ed. 1988)).
9
4
pain in his left eye. (AR 826.) Plaintiff then saw Dr. Phipps on July 18, 2011, at which
time Plaintiff described that he was "getting really light sensitive" and that this caused
him to spend most of his time inside and in the dark. (AR 419.) He again reported that
lowering his head and that working, bending, or lifting for one hour caused aching and
pounding in his eye that subsided after one or two hours if he rested. Plaintiff treated his
pain with Hydrocodone. Plaintiff returned to Dr. Phipps on August 8, 2011, reporting
that his left eye felt "heavy" and "worse" with activity and that he noticed no change
while taking Restasis. (AR 416.)
On September 28,2011, Plaintiff saw Dr. Lichtenstein. Plaintiff reported that "too
much light" caused pain and '"red' vision where everything look[ed] intensely red." (AR
564.) Plaintiff explained that, if he tried to wear an eye patch over his left eye, the eye
dried out and became "achy and sore and uncomfortable." !d. The Restasis prescribed
for dry eye did not make a difference for Plaintiff. Plaintiff described his discomfort as
constant and as occurring even when sedentary and inside. Dr. Lichtenstein's
examination revealed the left eye was abnormal with a "nonfunctional iris." !d. While
he noted Plaintiff had good energy, could take walks and do things outside, and could
complete activities of daily living, he noted any outside activity caused eye pain and that
Plaintiff could not safely drive for any length of time as it involved exposure to bright
lights. Dr. Lichtenstein also noted that Plaintiff used to work outside but could not return
4
In a letter dated July 26, 2011, Dr. Phipps explained Plaintiffs condition and treatment since
the February 2010 injury as follows:
[H]e has issues with elevated pressure in the eye which has been controlled with
topical drops as well as chronic inflammation inside the eye. These problems in
combination with the fact that there is no iris tissue to block light has resulted in
extreme light sensitivity and photophobia. The elevated intraocular pressure can
be exacerbated by bending and lifting and can cause eye ache and headache. In
addition, the lack of iris tissue exposes him to a significant amount of light which
can lead to a condition called erythropsia or "red vision." He has experienced this
as well. We are trying to keep his intraocular pressure and intraocular
inflammation under control with eye drops, and he is slowly getting getter
although does have significant disability due to his symptoms.
(AR 418.)
10
to that work because wind and air caused discomfort. He therefore recommended that
Plaintiff attend vocational training to find work "at home part-time, a little bit at a time,
out of the sun and out of the wind that just use[ d] his one good eye and his ability to fix
things." !d.
Plaintiff returned to Dr. Lichtenstein on November 9, 2011, for bronchitis.
Plaintiff reported experiencing chronic pain, dryness, and soreness in his left eye that
impacted his ability to do "any kind of work." (AR 864.) Plaintiff explained that his left
eye was "very sensitive to light and to any covering" and that covering it caused pain and
dryness. !d. Dr. Lichtenstein diagnosed depression and post-traumatic stress disorder,
that also impacted Plaintiffs energy levels, and he referred Plaintiff to a psychologist for
therapy to help him adjust to his loss of vision and loss of income for his family. 5 That
same week, Plaintiff reported to Dr. Phipps that he experienced aching and light
sensitivity and that Restasis had not improved his discomfort. Dr. Phipps discontinued
Restasis at that time, and he noted that Plaintiff was "very photophobic." (AR 854.)
Plaintiff returned to see Dr. Phipps on March 9, 2012, reporting continued light
sensitivity, and on July 23, 2012, reporting "increased" light sensitivity, particularly in
sunlight, as well as pain in his left eye. (AR 849.) He explained that "increased" activity
caused nausea and pressure in his eye, id., and that the only time he did not experience
pain or aching was when he was not in the light or "trying to work." (AR 852.)
Plaintiff returned to Dr. Lichtenstein on August 10, 2012, and reported continued
struggling with his left eye. He described chronic pain and "some kind of flare" in the
left eye, and he complained that any light impacted his vision. (AR 860.) Plaintiff
explained that his right eye had been impacted as well and that he still had not been able
to function or work. Plaintiff informed Dr. Lichtenstein that he had not been taking
Hydrocodone, but that marijuana had been helpful. He requested a prescription for
medical marijuana, which Dr. Lichtenstein approved. Dr. Lichtenstein also suggested
vocational retraining for light work. Dr. Lichtenstein noted that they sat in a darker room
5
Plaintiff began treatment with Dr. Larry Kart in December 2011 that continued through
November 2012.
11
because the light really bothered Plaintiffs left eye. Dr. Lichtenstein also noted that
Plaintiffs use of his left eye use was "minimal." ld.
B.
Treating Sources' Physical Assessments of Plaintiff.
On August 8, 2012, Dr. Lichtenstein completed a residual functional capacity
("RFC") evaluation for Plaintiff. He diagnosed eye trauma that caused chronic facial
pain and distorted vision. He listed Plaintiffs limitations as "functional vision with one
eye and limited to indoor lighting" that was exacerbated by bending and lifting heavy
objects (greater than fifty pounds) and that was distorted by sunlight and flashes. (AR
843.) He indicated that Plaintiff would "often" experience pain and other symptoms
severe enough to interfere with attention and concentration. ld. He also noted that
Plaintiff would need to take a break for fifteen minutes every hour during an eight-hour
workday and that Plaintiff would be absent from work approximately twice a month as a
result of his limitations.
On September 21, 2012, Dr. Phipps completed a RFC evaluation for Plaintiff. He
diagnosed Plaintiffs left eye with stable pseudophakia; 6 stable traumatic aniridia; 7
secondary glaucoma, which was stable with treatment; and chronic low-grade uveitis and
keratopathy. 8 He listed associated symptoms to include "[d]ebilitating glare due to
aniridia" and "severe photophobia." (AR 845.) He described Plaintiffs limitations as
decreased left eye vision, with decreased depth perception, and a loss of accommodation
due to pseudophakia. He indicated that Plaintiff could not tolerate bright light or normal
lighting conditions due to severe photophobia caused by the absence of the iris, lowgrade uveitis, and keratopathy, including severe symptoms of glare from sunlight,
6
Pseudophakia means "[a]n eye in which the natural lens is replaced with an intraocular lens."
Stedman's Medical Dictionary 1592 (28th ed. 2006).
7
Aniridia is the absence of the iris. See Stedman's Medical Dictionary 94 (28th ed. 2006).
8
Uveitis is an inflammation of the uveal tract. See Stedman's Medical Dictionary 2079 (28th ed.
2006). Uvea is the vascular layer of the eyeball, which includes the pupil and the iris, which in
tum functions as a diaphragm with sphincter and dilator muscles. See id. at 1000, 2079.
Keratopathy refers to any disease, damage, dysfunction, or abnormality of the cornea. See id. at
1025.
12
- - - - - - - - -
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headlights, and streetlights. He determined that dusty, dry, or windy conditions would
exacerbate Plaintiff's conditions. He predicted that Plaintiff would "constantly"
experience pain and other symptoms severe enough to interfere with attention and
concentration, that Plaintiff would "constantly" need to take unscheduled breaks of an
unknown length during an eight-hour workday, and that Plaintiff would be absent from
work more than four times a month as a result of his condition. (AR 845-46.) He added
the following notation: "From my experience with this patient, his symptoms are too
debilitating to perform work of any kind." (AR 846.)
C.
State Consultants' Physical Assessments of Plaintiff.
In September 2011, Margie Morley, identified as a single decision maker,
completed a physical RFC assessment based on Plaintiff's medical record as part of the
original determination that Plaintiff was "[n]ot [d]isabled." (AR 90.) She listed
Plaintiff's exertionallimitations based on pressure in his left eye as follows: Plaintiff
could occasionally lift and/or carry ten pounds; could frequently lift and/or carry less than
ten pounds; could push and pull without limitation; and could stand, walk, and sit with
normal breaks for a total of more than six hours on a sustained basis in an eight-hour
workday. She found no manipulative limitations, no communicative limitations, and no
postural limitations, except that Plaintiff could never climb ladders, ropes, and scaffolds,
based on pressure in his left eye and loss of depth perception. She listed Plaintiff's visual
limitations in his left eye as including limitations in near and far acuity, depth perception,
accommodation, color vision, and field of vision. She noted Plaintiff had "very little use
of left eye." (AR 70.) She found environmental limitations that required Plaintiff to
avoid even moderate exposure to hazards, fumes, odors, dusts, gases, and poor ventilation
due to dryness, irritation, pain, and decreased vision in Plaintiff's left eye.
In November 2011, Dr. Geoffrey Knisely reviewed Plaintiff's medical record to
complete a second physical RFC assessment as part of reconsideration of Plaintiff's
application for benefits. Upon reconsideration, he found Plaintiff to be "[n]ot
[d]isabled." (AR 107.) Dr. Knisely confirmed the limitations listed in Ms. Morley's
13
September 2011 RFC assessment, with the exception that Dr. Knisely found Plaintiff
could frequently lift and/or carry ten pounds.
D.
Assessments of Plaintiff's Mental Limitations.
In August 2011, Plaintiff was examined by a consultative psychologist, Jason
Fechter. Plaintiff reported that he relived the accident causing his left eye injury every
day. A year after the accident, Plaintiff reported that he had attempted to return to work
but experienced "incredible" pain that necessitated taking "a lot" of pain killers. (AR
831.) He reported that he experienced severe headaches after exerting himself that lasted
two to three days and that he would have to rest in bed in the dark during these
headaches. He stated that he felt pain forcing him to take pain pills after a couple hours
of work or heavy lifting. He reported seeing red when his left eye was stressed.
Plaintiff described himself as feeling lost and useless because he had not been able
to return to his prior work as a logger. He also described that he was less social and
active, that he stayed at home most of the time and avoided friends, and that he became
irritated when asked about his eye. He reported chronic frustration stemming from his
loss of work and social functioning.
Plaintiff identified his daily activities to include cooking and playing with his
children inside. He explained that he typically woke up around 5:30 a.m. to spend a few
hours outside until the light became too bright. He further explained that after dusk he
would return to work outside. He stated that he had difficulty sleeping.
Dr. Fechter observed that Plaintiff was cooperative, with an appropriate affect,
normal motor activity and speech, intact memory and thought process, unimpaired
judgment and insight, and no evidence of hallucinations, delusions, or suicidal ideation.
Dr. Fechter assessed a score of29/30 on a mini-mental status evaluation, noting that
Plaintiffs loss of one point in the Attention and Calculation score did not suggest
cognitive impairment. Dr. Fechter also assessed a Global Assessment of Functioning
("GAF") score of 45. 9 Dr. Fechter determined that Plaintiffs mood was depressed and
9
"The GAF is a scale promulgated by the American Psychiatric Association to assist 'in tracking
the clinical progress of individuals [with psychological problems] in global terms."' Kohler v.
14
anxious, and he reported that Plaintiff "cried deeply" when recounting his accident. (AR
832.) He noted that Plaintiff was unemployed, had inadequate finances, and had one
prior conviction for marijuana cultivation. Dr. Fechter diagnosed chronic post-traumatic
stress disorder and chronic pain disorder associated with both psychological factors and a
general medical condition from his ruptured left eye, loss of iris, and photosensitivity.
In September 2011, non-examining state agency psychologist, Dr. Ellen Atkins,
reviewed Plaintiff's medical record. She determined that Plaintiff had medically
determinable impairments of a severe loss of visual acuity, a severe secondary retinal
disorder, severe glaucoma, severe anxiety disorders, and severe somatoform disorders.
She also determined that Plaintiff had a mild restriction of activities of daily living; mild
difficulties in maintaining social functioning; moderate difficulties in maintaining
concentration, persistence, and pace; and no repeated episodes of decompensation.
Dr. Atkins found Plaintiff had "sustained concentration and persistence
limitations." (AR 71.) This included moderate limitations with his ability to maintain
attention and concentration for extended periods, as well as with his "ability to perform
activities within a schedule, maintain regular attendance, and be punctual within
customary tolerances." (AR 72.) This also included moderate limitations with his
"ability to complete a normal workday and workweek without interruptions from
psychologically based symptoms and [with an ability] to perform at a consistent pace
without an unreasonable number and length of rest periods." !d. She found no other
significant limitations regarding the remainder of Plaintiff's potential sustained
concentration and persistence limitations, 10 and she found that Plaintiff exhibited no
Astrue, 546 F.3d 260, 262 n.l (2d Cir. 2008) (quoting Am. Psychiatric Ass'n, Diagnostic and
Statistical Manual of Mental Disorders 32 (4th ed. 2000)). A GAF score of 45 "indicates
' [s]erious symptoms (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) OR
any serious impairment in social, occupation, or school functioning (e.g., no friends, unable to
keep a job)."' Parker v. Comm 'r of Soc. Sec. Admin., 2011 WL 1838981, at *6 (D. Vt. May 13,
2011) (quoting Am. Psychiatric Ass 'n, Diagnostic and Statistical Manual of Mental Disorders
32).
10
The assessment listed that Plaintiff was "[n]ot significantly limited" in his "ability to carry out
very short and simple instructions," in his "ability to carry out detailed instructions," in his
15
"understanding and memory limitations," no "social interaction limitations," and no
"adaption limitations." (AR 71-72.) She opined that Plaintiffs post-traumatic stress
disorder and pain symptoms "undermine[ d) cognitive efficiency," but she nonetheless
concluded that he could sustain concentration, persistence, and pace over two-hour
periods for a typical workday and workweek. (AR 72.)
In November 2011, another non-examining state agency psychologist, Dr. Joseph
Patalano, reviewed Plaintiffs medical record. He offered the same assessment as Dr.
Atkins regarding Plaintiffs medically determinable impairments and regarding Plaintiffs
restrictions and difficulties of performing activities of daily living and maintaining social
functioning, concentration, persistence, and pace. He also offered the same assessment as
Dr. Atkins regarding Plaintiffs moderate sustained concentration and persistence
limitations, as well as regarding Plaintiffs lack of memory or understanding limitations,
social interaction limitations, and adaption limitations. Finally, he likewise noted that
Plaintiffs post-traumatic stress disorder and pain symptoms "undermine[ d] cognitive
efficiency" but that Plaintiff could sustain concentration, persistence, and pace over twohour periods for a typical workday and workweek. (AR 105.)
E.
Plaintifrs Testimony at the January 3, 2013 Hearing.
Plaintiff testified that his light sensitivity began after the February 20 10 accident.
He described that on a daily basis he wakes early in the morning and "putter[ s] around
the house" doing "daily mundane stuff' until the sun rises and that he then returns inside
until the sun sets. (AR 42.) He explained that he spends the day inside trying "to do
things around the house." !d. He also stated that he listens to audio books, the television,
and the radio, but does not actually watch a lot of television. He testified that he changed
all the lights in his house to 25 and 40 watt bulbs and covered some of his windows in
order to reduce the brightness inside. He described his house as like a cave, but that it is
"ability to sustain an ordinary routine without special supervision," in his "ability to work in
coordination with or in proximity to others without being distracted by them," and in his "ability
to make simple, work-related decisions." (AR 71-72.)
16
still too bright inside "at times." (AR 46-48.) He stated that twenty minutes in Home
Depot caused headaches and anxiety because it was "just so glossy bright." (AR 47.)
Plaintiff testified that if he stayed out of the light or kept it to a minimum, while
being cautious about his daily work, he could "still accomplish a few things" but without
"longevity." (AR 41.) He explained that he could keep his environment only so dark,
because the darkness affected his ability to see with his right eye, but that the "amount of
light to be able to, to actually see and function normally, ... just adds up." !d. He
testified that an eye patch had not been effective because it could not reduce all light to
his left eye and because it caused dryness, pain, and "seeing reds and blues and little
swirling lights." !d. He also testified that sunglasses had not been effective because it
remained too bright outside in the sunlight and that sunglasses had not been effective in
other lighting conditions because it made it too hard to "see to function to do anything."
(AR 43.) When asked about glasses with a blacked-out lens for his left eye, he answered
that he had tried these glasses, but that they "thr[ ew]" off his "perception" and he was
constantly "trying to take [them] off' because his left eye was "still dominant." !d.
Plaintiff testified that his ability to drive had also been impacted. He stated that he
could not drive during the daylight hours due to the sunlight and that he could drive at
night only if he "didn't get flashed by too many lights." (AR 40.) Headlights impeded
his ability to drive at night. He also explained that his perception is "off' with his left
eye and that he would see double while driving. These problems impacted his ability to
attend vocational rehabilitation, and Plaintiffs wife often drove him to his appointments.
Plaintiff testified that the wind, cold, and heat aggravated his left eye. He
explained that his attempt to return to work as a logger caused headaches and that
immediately following the accident, lifting a gallon of milk would trigger a headache. He
stated that although he was "quite a bit stronger," there was "no way" he could lift, carry,
or tug thirty-five or fifty pounds. (AR 44.) He stopped lifting weights because that
activity caused headaches as well. He testified that, if he limited himself to minimal
work in minimal light, he could go a week without a headache but any additional work
for two to three hours caused headaches that lasted two to three days. He also stated that
17
he would from time to time get headaches even after "being reasonably careful." (AR
46.)
Plaintiff testified that the "only thing" that worked to cure his activity-induced
headaches was to lie down in a dark room. (AR 40.) He testified that narcotics were
ineffective for pain relief and that he was uncomfortable taking them on a regular basis.
He further testified that the accident to his left eye caused anxiety, particularly because he
is left-handed and left-eye dominant, and that he has trouble being around people since
the accident. He stated he has trouble with focus and concentration, but that marijuana
helped him focus and was effective for his anxiety. He also stated that he visits a
counselor with his family every week or every other week because he could not "hold it
all in" following the accident and that he thought this was helping. (AR 48-49.)
III.
The ALJ's Application of the Five-Step Sequential Evaluation Process.
In order to receive benefits, a claimant must be "disabled" 11 on or before his or her
"date last insured" under the Social Security Act. 42 U.S.C. § 423(a)(l)(A). The Social
Security Administration regulations outline the following "five-step, sequential
evaluation process used to determine whether a claimant is disabled":
( 1) whether the claimant is currently engaged in substantial gainful activity;
(2) whether the claimant has a severe impairment or combination of
impairments; (3) whether the impairment meets or equals the severity of the
specified impairments in the Listing of Impairments; (4) based on a
"residual functional capacity" assessment, whether the claimant can
perform any of his or her past relevant work despite the impairment; and
(5) whether there are significant numbers of jobs in the national economy
that the claimant can perform given the claimant's residual functional
capacity, age, education, and work experience.
11
Disability is defined as the "inability to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less than 12
months." 42 U.S.C. § 423(d)(1)(A). A claimant's "physical or mental impairment or
impairments" must be "of such severity" that the claimant is not only unable to do any previous
work but cannot, considering the claimant's age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national economy. 42 U.S.C.
§ 423(d)(l)(A).
18
Mcintyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (citing 20 C.P.R.
§§ 404.1520(a)(4)(i)-(v) & 416.920(a)(4)(i)-(v)). "The claimant has the general burden
of proving that he or she has a disability within the meaning of the Act, and bears the
burden of proving his or her case at steps one through four of the sequential five-step
framework established in the SSA regulations[.]" Burgess v. Astrue, 537 F.3d 117, 128
(2d Cir. 2008) (internal quotation marks omitted). At step five, "the burden shift[s] to the
Commissioner to show there is other work that [the claimant] can perform." Mcintyre,
758 F.3d at 150 (alterations in original) (internal quotation marks omitted).
In this case, the ALJ determined that Plaintiff meets the "insured status
requirements" of the Social Security Act through June 30, 2013, and that Plaintiff has not
engaged in substantial gainful activity since February 14, 2010. (AR 15.) At step two
and three, the ALJ found that Plaintiff has two severe impairments-a left eye
impairment and anxiety-but that Plaintiff does not have an impairment or combination
of impairments that meets or medically equals the severity of any listed impairment. At
the fourth step, the ALJ determined Plaintiffs RFC allows him:
[T]o perform light work ... except he can lift, carry, push, or pull 20
pounds occasionally and 10 pounds frequently. [Plaintiff] has no
limitations with sitting, standing, and walking. He must avoid climbing
ladders, ropes, and scaffolds. He must avoid hazards such as unprotected
heights and dangerous moving machinery. [Plaintiff] must avoid even
moderate exposure to dust, odors, fumes, gases, and poor ventilation. He
must avoid an environment where work is performed in the sunlight.
[Plaintiff] is limited to uncomplicated tasks, which are defined as those that
can be learned in 30 days o[r] less. He can persist[] at tasks, concentrate,
and stay on pace for two-hour blocks of time consistent with regularly
scheduled breaks. [Plaintiff] must avoid tasks requiring binocular vision.
(AR 17.) Based on Plaintiffs RFC for light work with the listed limitations, the ALJ
determined that Plaintiff is unable to perform any past relevant work as a logger or
assembler of railroad cars, which are both classified as heavy exertional work, or as a
carpenter, which is classified as medium exertional work. Finally, at the fifth step, the
ALJ concluded that there are significant jobs that exist in the national economy that
Plaintiff can perform in light of his age, education, work experience, and RFC.
19
IV.
Conclusions of Law and Analysis.
A.
Standard of Review.
In reviewing the Commissioner's decision, the court "'conduct[s] a plenary review
of the administrative record to determine if there is substantial evidence, considering the
record as a whole, to support the Commissioner's decision and if the correct legal
standards have been applied."' Cichocki v. As true, 729 F.3d 172, 175-76 (2d Cir. 2013)
(quoting Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008)). Substantial evidence is
'"more than a mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion."' Selian v. Astrue, 708 F.3d 409, 417 (2d Cir.
2013) (quoting Richardson v. Perales, 402 U.S. 389,401 (1971)). Even if a court could
draw different conclusions after an independent review of the record, the court must
uphold the Commissioner's decision when it is supported by substantial evidence and
when the proper legal principles have been applied. See 42 U.S.C. § 405(g). It is the
Commissioner that resolves evidentiary conflicts and determines credibility issues, and
the court may not substitute its own judgment for the Commissioner's. See Yancey v.
Apfel, 145 F.3d 106, 111 (2d Cir. 1998); Aponte v. Secretary ofHHS, 728 F.2d 588, 591
(2d Cir. 1984).
B.
Plaintiff's Challenges.
Plaintiff primarily challenges the ALJ's RFC determination, arguing that the ALJ
failed to consider and include limitations stemming from his light sensitivity and the
severity and frequency of his pain and headaches. Plaintiff argues that the ALJ, in turn,
failed to consider how these limitations would impact Plaintiffs ability to concentrate
and focus and whether he would have to take additional breaks during a workday and
absences from work due to those limitations and any attendant treatment and
appointments. Finally, Plaintiff argues the ALJ improperly assigned minimal weight to
the opinions of his treating physicians, while according substantial weight to agency
consultants.
20
The Commissioner responds that the ALJ properly evaluated and fully accounted
for each of Plaintiffs relevant limitations in her RFC assessment and that substantial
evidence in the record supports that assessment.
C.
Whether Substantial Evidence Supports the ALJ's RFC Finding.
Pursuant to Social Security Ruling 96-8P, "RFC is an assessment of an
individual's ability to do sustained work-related physical and mental activities in a work
setting on a regular and continuing basis," which "means 8 hours a day, for 5 days a
week, or an equivalent work schedule." SSR 96-8P, 1996 WL 374184, at *1 (July 2,
1996). "RFC is not the least an individual can do despite his or her limitations or
restrictions, but the most," and any RFC assessment requires consideration of "functional
limitations and restrictions that result from an individual's medically determinable
impairment or combination of impairments, including the impact of any related
symptoms." !d.
The ALJ '"must first identify [an] individual's functional limitations or restrictions
and assess his or her work-related abilities on a function-by-function basis,"' as listed in
20 C.F.R. §§ 404.1545 & 416.945. Cichocki, 729 F.3d at 176 (quoting SSR 96-8P, 1996
WL 374184, at *1). These functions "include":
[P]hysical abilities such as sitting, standing, walking, lifting, carrying,
pushing, pulling, or other physical functions; mental abilities such as
understanding, remembering, carrying out instructions, and responding
appropriately to supervision; and other abilities that may be affected by
impairments, such as seeing, hearing, and the ability to tolerate
environmental factors.
Cichocki, 729 F.3d at 176. An RFC is "expressed in terms of the exertionallevels of
work, sedentary, light, medium, heavy, and very heavy," that are outlined in 20 C.F.R.
§ 404.1567. SSR 96-8P, 1996 WL 374184, at *1. The ALJ in this case found a "physical
exertion requirement[]" of light work:
Light work involves lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds. Even though the
weight lifted may be very little, a job is in this category when it requires a
good deal of walking or standing, or when it involves sitting most of the
21
time with some pushing and pulling of arm or leg controls. To be
considered capable of performing a full or wide range of light work, you
must have the ability to do substantially all of these activities.
20 C.F.R. § 404.1567(b). Pursuant to Social Security Ruling 83-10, frequent "means
occurring from one-third to two-thirds ofthe time." SSR 83-10, 1983 WL 31251, at *6
(Jan. 1, 1983). "The full range of light work requires intermittently standing or walking
for a total of approximately 6 hours of an 8-hour workday, with sitting occurring
intermittently during the remaining time." Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir.
2009).
To assess functional limitations or restrictions and a claimant's RFC, an ALJ must
consider "all the relevant evidence" in the record. 20 C.F.R. § 404.1545(a). This
includes a claimant's own statements, any descriptions or observations by other sources,
and all "relevant medical" evidence, such as a claimant's "complete medical history,"
medical reports, statements by "medical sources," and any "formal medical
examinations" or consultative examinations. See 20 C.F.R. § 404.1545(a)(3); 20 C.F.R.
§ 404.1512(d)(2); 20 C.F.R. § 404.1513(a), (b), (d); see also 20 C.F.R. § 404.1512(b)
(directing that relevant evidence includes objective medical evidence, such as observable
anatomical abnormalities; evidence from medical sources, such as medical history,
opinions, and statements about treatment; and any statements from a claimant or others to
medical sources during the course of examination or treatment).
As part of her analysis of Plaintiffs physical RFC, the ALJ concluded the record
did not support Plaintiffs allegations of severe and constant pain and headaches because
Plaintiff had denied pain at times during his treatment and because Plaintiffs most severe
symptoms were triggered only when Plaintiff attempted heavy work. On this basis, the
ALJ concluded that Plaintiffs pain symptoms would not be triggered by light work as
provided in her RFC determination. Plaintiff argues that the ALJ assumed too narrow a
focus in rejecting his complaints regarding, and the causes of, his pain and headaches and
that substantial evidence in the record reveals that his headaches, photosensitivity, and
other symptoms were not necessarily solely triggered by heavy exertional work.
22
Prior to attempting to return to his work as a logger, Plaintiff reported constant
headaches in June of2010, and headaches after his September 2010 surgery. In
November of 2010, Plaintiff reported to Dr. Phipps that he experienced headaches that
started over his left eye, occurred two to three times per week, and lasted two days, and in
December of2010, he reported to Dr. Young "bad headaches from his eye." (AR 368.)
Plaintiff attempted to return to logging in January of 2011, which triggered
"excruciating" headaches and pain. (AR 462, 571.) At the same time, he reported that
"everything" seemed to bother his left eye and that he was fine only when he did not "do
anything." (AR 434.) His pain subsided only when he had been taking "it easy a lot."
(AR 428.) In March of2011, he confirmed that he had not worked over the past month
and that his pain had mostly subsided, except for feelings of pressure, heaviness, and
cloudiness in his left eye. By July of2011, however, he reported that lowering his head,
as well as working, bending, or lifting for only one hour, caused aching and pounding in
his eye that subsided after one or two hours if he rested. He continued to report that
merely leaning or bending over triggered pain and headaches. In November of 2011,
Plaintiff reported chronic pain, dryness, and soreness that impacted his ability to do "any
kind of work." (AR 864.) In March of2012, Plaintiff reported that he experienced no
pain or aching only when he was not in the light or trying to work.
Accordingly, Plaintiffs reported symptoms when relayed to his treatment
providers were consistent with his testimony before the ALJ that he lacked any
"longevity" for work, even when he "very carefully" tried to manage his daily activities,
and that he often experienced headaches, light sensitivity, issues with perception, and
other symptoms. (AR 41.) None of Plaintiffs treatment providers reported any concern
that Plaintiff was exaggerating his symptoms or otherwise malingering. The record as a
whole thus supports a conclusion that Plaintiffs headaches and related symptoms were
not triggered solely by heavy exertional work. Instead, even light and moderate activities
were enough to cause Plaintiff to suffer symptoms stemming from his left eye that
interfered with his ability to do work. See 20 C.P.R.§ 404.1529(a) (directing an ALJ to
consider whether "related symptoms affect [the] ability to work"). The ALJ's conclusion
23
that light work would not trigger Plaintiffs most severe and frequent symptoms and that
those symptoms would not interfere with ability to work for a normal workday during a
normal workweek thus reflects a "misreading of the evidence" in the record. Genier v.
Astrue, 606 P.3d 46, 50 (2d Cir. 2010) (remanding because a "misreading of the
evidence" does not comport with the ALJ's obligation to consider all of the relevant
evidence in the record).
The ALJ also found that the severity and frequency of Plaintiffs subjective
complaints of pain were not consistent with his course of treatment because Plaintiff
decreased and even stopped using pain medication. An ALJ may not "impose" the
"notion" that the severity of an impairment and its symptoms "directly correlates" with
the intrusiveness of medical treatment. Burgess v. Astrue, 537 P.3d 117, 129 (2d Cir.
2008) (internal quotation marks omitted). The ALJ should focus on "other substantial
evidence in the record, such as the opinions of other examining physicians[,]" to ascertain
Plaintiffs allegations of symptoms, including pain, despite a course of conservative
treatment. I d. In addition, a claimant may refuse a course of treatment if a claimant has
"a good reason" to do so. 20 C.P.R. §§ 404.1530(b), (c) & 416.930(b), (c). Thus,
evidence of treatment received or declined by Plaintiff is relevant to determining his
disability pursuant to 20 C.P.R.§ 404.1512 and 20 C.P.R.§ 404.1530. However, in
discrediting Plaintiffs subjective symptoms of pain and headaches, the ALJ failed to
acknowledge that Plaintiff proffered a reason for his desire to avoid narcotic medication,
which Dr. Sher supported because it exposed Plaintiff to addition risks, as well as that
Plaintiff explained that his headaches could last for days unless he was able to lie down in
the dark. Cf Aubeufv. Schweiker, 649 P.2d 107, 114 n.9 (2d Cir. 1981) (noting that
pursuant to the regulations a claimant could have a good reason to reject a medication
when it was ineffective and caused negative side effects ). 12
12
The ALJ referenced Plaintiffs use of marijuana and noted that Plaintiff found marijuana
helpful for treating his anxiety and focus. See 20 C.F.R. § 404.1529(c)(3)(iv)-(v) (requiring to
evaluate the intensity and persistence of symptoms consideration of the type, dosage,
effectiveness, and side effects of any medication and any treatment in addition to medication).
While Plaintiff contends that the ALJ also erred by failing to consider the effects of marijuana
24
Finally, as part of her analysis of Plaintiffs physical RFC, the ALJ also concluded
the record did not support Plaintiffs allegations of light sensitivity. The ALJ evaluated
Plaintiffs testimony regarding his daily activities to conclude that the record failed to
support his alleged inability to work due to light sensitivity and that his "ability to
perform [his daily activities] is generally consistent with an ability to perform a range of
light exertion work performed outside of direct sunlight." (AR 19.) The ALJ determined
that Plaintiff could work if he "avoid[ ed] an environment where work is performed in the
sunlight." (AR 17.)
This conclusion, however, failed to reflect that there was substantial evidence in
the record that Plaintiff was "very photophobic" and had "severe photophobia," which his
treating physicians, including Dr. Phipps and Dr. Fynn-Thompson, diagnosed and
accommodated by examining Plaintiff in low lighting conditions, which was an atypical
examination setting. (AR 675, 826, 845, 853.) Plaintiff further testified that he could
only perform activities in a darkened environment, which imposed obstacles as it
impacted his ability to see with his right eye. The ALJ's RFC analysis, however, is bereft
of any consideration of whether a work environment of this nature would be feasible.
Notably, the vocational expert testified that "most workplaces have fairly strong lighting
so people can see what they're doing," (AR 54), and Plaintiff himself explained that
indoor lighting at Home Depot triggered pain within twenty minutes because of the
"glossy bright" light inside. (AR 47.)
In rejecting Plaintiffs complaints of light sensitivity and glare, the ALJ relied
solely on Plaintiffs reported daily activities, which included minimal work indoors
during the day and outdoors at dawn and dusk. The ALJ' s reliance on Plaintiffs reported
daily activities, however, fails to account for the actual conditions in which Plaintiff
worked, both indoors and outdoors. Specifically, Plaintiff testified that he had made his
home like a cave by covering windows and installing low-wattage bulbs and that he often
use in a workplace (Doc. 8-1 at 14), Plaintiff cites to no case law or social security ruling that
indicates an ALJ should consider the use of medical marijuana with regard to Plaintiffs ability
to perform physical and mental activities in a work setting on a regular and continuing basis.
25
had to keep lighting conditions so reduced inside his house to avoid impacting his left eye
that he could not function because it was too dark. He said that "at times" these measures
were not sufficient to account for his light sensitivity. (AR 46-4 7.) Plaintiff also
explained that in order to work in brighter lighting conditions he had tried using an eye
patch, sunglasses, and glasses with the left lens darkened but that these alternatives either
caused dryness or soreness or did not block out enough light to address his light
sensitivity. Finally, Plaintiff explained that the best cure for his symptoms was to lie
down in the dark, which he could accommodate when he stayed at home all day. For
these reasons, Plaintiff's sensitivity to lights and glare, supported by the medical
observations and the conclusions of his treating physicians, is a relevant limitation on his
work-related abilities as it has a direct impact on the work environments which will be
able to offer h~m light work while accommodating his restrictions.
The court, therefore, agrees with Plaintiff that the ALJ failed to conduct a
"thorough examination" of Plaintiff's "relevant limitations and restrictions" to determine
his physical exertion requirements and whether any "specified modifications" were
necessary. Cichocki, 729 F.3d at 178. The RFC determination, therefore, does not list
"all" of Plaintiff's functional limitations or restrictions stemming from his vision
impairment that impacts his "work-related abilities." !d. at 176, 178. Remand is
therefore "appropriate" on this basis alone. !d. at 177 (directing that remand is
"appropriate" when "an ALJ fails to assess a claimant's capacity to perform relevant
functions, despite contradictory evidence in the record, or where other inadequacies in the
ALJ's analysis frustrate meaningful review"); see also Poupore, 566 F.3d at 306 (noting
remand is appropriate when there is a reasonable basis to doubt whether the ALJ applied
the correct legal principles).
Because the ALJ failed to identify all relevant limitations and restrictions in the
first instance, the court does not address Plaintiff's further argument that the ALJ also
failed to consider whether these limitations and restrictions, as well as medical
appointments to address his impairment, would have necessitated breaks during the
workday and work absences, as well as whether these limitations and restrictions would
26
have undermined his ability to maintain persistence, concentration, and pace. On
remand, however, the ALJ should reevaluate any findings on these issues following a
redetermination of Plaintiffs functional limitations and restrictions. See 20 C.P.R.
§§ 404.1545(a) & 416.945 (a) (requiring consideration ofwhether impairments and
"related symptoms" cause "mental limitations that affect what [a claimant] can do in a
work setting," as well as the claimant's "ability to meet the physical, mental, sensory, and
other requirements of work"); see also SSR 96-8P, 1996 WL 374184, at* 1 (directing an
ALJ to consider, inter alia, the "effects of treatment, including limitations or restrictions
imposed by the mechanics of treatment (e.g., frequency oftreatment, duration, disruption
to routine, side effects of medication)").
D.
Whether the ALJ Violated the Treating Physician Rule.
The ALJ' s failure to fully account for Plaintiffs relevant limitations and
restrictions stemming from his visual impairment is further compounded by the ALJ' s
failure to comply with the treating physician rule, which mandates that the opinions of
treating physicians are "binding if ... supported by medical evidence and not
contradicted by substantial evidence in the record." Selian, 708 P.3d at 418; see also
Burgess, 537 P.3d at 128 ("[T]he [Social Security Administration] recognizes a treating
physician rule of deference to the views of the physician who has engaged in the primary
treatment of the claimant[.]") (internal quotation marks omitted). To weigh these
opinions, an ALJ must consider, inter alia, the length, frequency, nature, and extent of
the treatment relationship; the consistency of the opinion offered with the "record as a
whole"; and whether the opinion is "of a specialist about medical issues related to his or
his area of specialty." 20 C.P.R.§§ 404.1527(c)(2), (4), (5) & 416.927(c)(2), (4), (5). In
accordance with these regulations, the ALJ must provide "good reasons" regarding "the
weight" given to a treating physician's opinion. Halloran v. Barnhart, 362 P.3d 28, 32
(2d Cir. 2004) (internal quotation marks omitted); see also 20 C.P.R.§ 404.1513 (listing
"acceptable medical sources").
In this case, the ALJ assigned "minimal weight" to the specific opinions of Dr.
Lichtenstein and Dr. Phipps regarding Plaintiffs ability to maintain concentration,
27
persistence, and pace, as well as whether and how often he would need to take
unscheduled breaks during a workday or would be absent from work, while she assigned
"significant weight" to the opinion of non-examining Dr. Atkins on those same issues.
(AR 20-21.) 13 In doing so, the ALJ failed to offer any consideration of the opinions and
diagnoses of Plaintiffs treating physicians regarding the trauma to his eye and how that
trauma affected his left eye's tolerance of light and further failed to explain why the ALJ
was impliedly rejecting those opinions.
Plaintiff consistently reported experiencing sensitivity to light and glare,
complaints that are supported by objective medical evidence in the record. Dr. FynnThompson, Dr. Phipps, Dr. Lichtenstein, Dr. Sher, and Dr. Young determined that
Plaintiffs iris is abnormal, nonfunctional, and almost entirely missing, which Dr. FynnThompson, Plaintiffs surgeon, concluded precludes reconstructive surgery of his pupil.
Dr. Fynn-Thompson, Dr. Phipps, Dr. Lichtenstein, and Dr. Sher further determined that
his left pupil is irregular, non-reactive, and, without surgery, cannot constrict to block
light. Dr. Phipps, Dr. Haight, and Dr. Fynn-Thompson diagnosed that Plaintiff was "very
photophobic." (AR 675, 826, 854.) Dr. Phipps, an ophthalmologist, explained that "the
fact that there is no iris tissue to block light has resulted in extreme light sensitivity and
photophobia[]." (AR 418.) He further determined that Plaintiffs symptoms associated
with his eye trauma included "[ d]ebilitating glare due to aniridia [and] severe
photophobia" (AR 845) and that Plaintiff could not tolerate bright light or normal lighting
13
The court has declined to address Plaintiffs challenges to the ALJ's findings regarding
Plaintiffs mental abilities in the workplace, breaks during a workday, and work absences so that
the ALJ can reevaluate those specific findings after the ALJ has fully considered in the first
instance Plaintiffs specific limitations and restrictions stemming from his visual impairment. It
appears, however, the ALJ correlated Plaintiffs cognitive abilities, as expressed in the minimental health examination, with his ability to maintain concentration, persistence, and pace. In
contrast, Plaintiff argues his symptoms of pain, headaches, and light sensitivity undermine his
ability to maintain concentration, persistence, and pace. He points out that Dr. Lichtenstein and
Dr. Phipps opined that Plaintiffs pain would "often" or "constantly" interfere with his ability to
concentrate. (AR 843, 845.) Indeed, Dr. Atkins and another state agency consultant agreed that
Plaintiffs post-traumatic stress disorder and pain symptoms undermined his "cognitive
efficiency." (AR 72, 105.)
28
conditions due to severe photophobia caused by the "absence of iris, low-grade uveitis,
and keratopathy." (AR 845.)
Accordingly, there was both an observable anatomical anomaly, the absence of
Plaintiffs iris, as well as the opinions and statements about Plaintiffs treatment and
symptoms by medical sources, that explained Plaintiffs complaints of sensitivity to light
and glare. See 20 C.P.R.§ 404.1512(b). There were no contradictory assessments of
Plaintiffs left eye and its correlation with his reported sensitivity to lights and glare. The
treating physician' opinions were therefore "supported by medical evidence and not
contradicted by substantial evidence in the record." Selian, 708 F.3d at 418. The ALJ,
however, offered no explanation for the failure to consider the opinions and diagnoses of
Plaintiffs treating physicians in rejecting Plaintiffs reported symptoms and in finding
the RFC's specified modifications would accommodate Plaintiffs visual impairment and
related symptoms. See SSR 96-5P, 1996 WL 374183, at *2-3 (July£, 1996) (directing
that an ALJ "must always carefully consider medical source opinions about any issue,
including opinions about issues that are reserved to the Commissioner," by analyzing the
"applicable factors" under 20 C.P.R.§§ 404.1527 & 416.927). The ALJ's failure to
provide "good reasons" for rejecting these opinions thus necessitates a remand. Selian,
708 F.3d at 419; see also Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998) (remanding
"to allow the ALJ to reweigh the evidence" and "develop[ e] the record as may be
needed" because the ALJ "failed to provide plaintiff with 'good reasons' for the lack of
weight attributed to her treating physician's opinion").
V.
Conclusion.
For the foregoing reasons, the court finds that the ALJ's RFC assessment is not
supported by substantial evidence in the record and does not address all relevant
limitations and their impact on Plaintiffs work-related abilities. A remand is therefore
necessary for redetermination of Plaintiffs functional limitations and restrictions and
whether he remains capable of an RFC of light work notwithstanding these limitations
and restrictions. See Cichocki, 729 F.3d at 176. In performing this analysis, the ALJ
must provide "good reasons" if the ALJ determines that the opinions of Plaintiffs
29
treating physicians must be rejected. The Commissioner then bears the burden of
demonstrating that there remains relevant work for Plaintiff to perform. See Mcintyre,
758 F.3d at 150.
The court therefore GRANTS Plaintiff Alfred George Anair's motion for an order
reversing the Commissioner's decision (Doc. 8), REVERSES the decision dated February
11, 2013, and REMANDS for further proceedings pursuant 42 U.S.C.A. § 405(g). See 42
U.S.C.A. § 405(g). The court DENIES Defendant's motion for an order affirming the
Commissioner's decision. (Doc. 12.)
'f-:.
SO ORDERED.
Dated at Burlington, in the District of Vermont, this ,}6 day of August, 2015.
Christina Reiss, Chief Judge
United States District Court
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