Turner v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

LISA TURNER,

Plaintiff,

V. CASE No. 8:19-cv-1818-T-TGW

ANDREW SAUL,

Commissioner of Social Security,

Defendant.

ORDER

The plaintiff in this case seeks judicial review of the denial of

her claims for Social Security disability benefits and supplemental security

income payments.’ Because the decision of the Commissioner of Social

Security is supported by substantial evidence and the plaintiff does not

identify any reversible error, the decision will be affirmed. □

The plaintiff, who was fifty-five years old at the time of the

administrative hearing and who has an eleventh-grade education (Tr. 57,

'The parties have consented in this case to the exercise of jurisdiction by a United

States Magistrate Judge (Doc. 16).

231), has worked as a collection clerk and service observer (Tr. 702). She

filed claims for Social Security disability benefits and supplemental security

income payments, alleging that she became disabled on May 27, 2011, due

to lupus, fibromyalgia, diabetes, sleep apnea, high blood pressure, possible

glaucoma and arthritis in lower back and right arm (Tr. 57). The claims □

were denied initially and upon reconsideration.

The plaintiff, proceeding pro se, then received a de novo

hearing before an administrative law judge. During the hearing, the

plaintiff agreed to amend her alleged disability onset date to November 10,

2014 (see Tr. 32-37).

The law judge found, as of the amended onset date, that the

plaintiff had severe impairments of lupus, diminished vision, obesity, □

diabetes, degenerative disc disease and hypertension (Tr. 14). He

concluded that those impairments were disabling and granted the plaintiffs

supplemental security income application as of November 10, 2014 (see Tr.

16, 18-19). The law judge dismissed the plaintiff's disability insurance

benefits claim because her insured status expired before the amended onset

date (see Tr. 696). The plaintiff, now represented by counsel, sought review

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by the Appeals Council on the ground that she had evidence of an earlier:

disability onset date (see Tr. 374). The Appeals Council denied the request

for review and let the decision of the law judge stand as the final decision of |

the Commissioner of Social Security (Tr. 1).

The plaintiff appealed the decision to this court (Case No. 8:16-

cv-3180-JSS). Thereafter, the Commissioner filed an Unopposed Motion

for Entry of Judgment with Remand (id. at Doc. 18). United States

Magistrate Judge Julie S. Sneed granted the motion and remanded the matter

for further administrative proceedings (id. at Doc. 20). The Appeals

Council then issued a detailed Order (Tr. 74-44) remanding the case to the.

administrative law judge in order to, inter alia, allow the plaintiff to amend

her onset date and give “further consideration of the claimant’s onset date,

with medical expert evidence” (Tr. 743).

In accordance with the Appeals Council Order, the plaintiff

received another hearing before administrative law judge Glen H. Watkins.

The plaintiff revised her disability onset date back to May 27, 2011 (see Tr.

694). Dr. Hema K. Sugumaran, a board-certified ophthalmologist, .

provided expert medical testimony (see Tr. 924-26).

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The law judge found that, “[s]ince the alleged onset of disability .

... the claimant has had the following severe impairments: lupus, decreased

vision; obesity; diabetes; degenerative disc disease and hypertension (20

CFR 404.1520(c) and 416.920(c))” (Tr. 697). The law judge determined

two residual functional capacities for the relevant time period. He

concluded that (Tr. 697-98):

[P]rior to April 6, 2015 ... the claimant had the

residual functional capacity to perform light work

as defined in 20 CFR 404.1567(b) and 416.967(b).

The claimant can lift up to twenty pounds

occasionally and lift and carry up to ten pounds

frequently. The claimant can stand or walk for

approximately six hours out of an eight-hour

workday and sit for approximately six hours out of

an eight-hour workday with normal breaks. The

claimant could never climb ladders, ropes or

scaffolds, but could frequently climb ladders

ramps and stairs.2 The claimant could frequently □

perform fine manipulations bilaterally. The

claimant has to avoid even moderate exposure to

extreme heat and avoid concentrated irritants such

as fumes, odors, dusts and gases. The claimant

2The law judge inconsistently said the plaintiff could “never” climb ladders and

could “frequently” climb ladders. The second assessment appears to be a typographical

mistake since ordinarily the climbing of ladders, ropes and scaffolds is a distinct category

from climbing ramps and stairs (see, e.g., Tr. 88). Significantly, the operative -

hypothetical question to the vocational expert stated “frequent climbing of ramps and

stairs” (Tr. 731). Regardless, the plaintiff has not based any argument on this mistake

(see fn. 3, infra).

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must avoid exposure to even moderate hazards.

The claimant could perform work requiring

frequent near visual acuity; occasional peripheral □

visual acuity and frequent depth perception.

The law judge determined, based on the testimony of a

vocational expert, that, despite these functional limitations, the plaintiff

could perform past relevant work as a service observer (Tr. 702).

Accordingly, the law judge decided that the plaintiff was not disabled prior -

to April 6, 2015 (Tr. 703).

The plaintiff's residual functional capacity beginning on April

6, 2015, contained the same limitations with one notable exception: the law

judge found, as of that date, the plaintiff “could perform no work requiring

visual acuity; peripheral visual acuity or depth perception” (Tr. 701). The

law judge determined, based on the testimony of the vocational expert, that

these limitations have prevented the claimant from performing past work □□

any jobs available in significant numbers in the national economy since April

6, 2015 (Tr. 702-03). Accordingly, the law judge found that, on April □□

2015, the plaintiff became disabled and continued to be disabled through the

date of the decision (Tr. 703). The Appeals Council denied the plaintiff's

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request for review and let the decision of the law judge stand as the final

decision of the Commissioner (Tr. 685).

IL.

In order to be entitled to Social Security disability benefits and»

supplemental security income, a claimant must be unable “to engage in any

substantial gainful activity by reason of any medically determinable physical

or mental impairment which ... has lasted or can be expected to last for a

continuous period of not less than twelve months.” 42 U.S.C.

423(d)(1)(A), 1382c(a)(3)(A). A “physical or mental impairment,” under

the terms of the Social Security Act, is one “that results from anatomical,

physiological, or psychological abnormalities which are demonstrable by

medically acceptable clinical and laboratory diagnostic techniques.” 42

U.S.C. 423(d)(3), 1382c(a)(3)(D). The Act provides further that a claimant

is not disabled if she is capable of performing her previous work. 42U.S.C.

423(d)(2)(A), 1382c(a)(3)(B). Also, in this case, the plaintiff must show

that she became disabled before her insured status expired on December 31,

2013, in order to receive disability benefits. 42 U.S.C. 423(c)(1); Demandre

v. Califano, 591 F.2d 1088, 1090 (Sth Cir. 1979), cert. denied, 444 U.S. 952."

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There is not a similar requirement with respect to the plaintiffs claim for

supplemental security income payments. □

A determination by the Commissioner that a claimant is not

disabled must be upheld if it is supported by substantial evidence. 42

U.S.C. 405(g). Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.”

Richardson v. Perales, 402 U.S. 389, 401 (1971), quoting Consolidated

Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). Under the substantial

evidence test, “findings of fact made by administrative agencies ... may be.

reversed ... only when the record compels a reversal; the mere fact that the

record may support a contrary conclusion is not enough to justify a reversal

of the administrative findings.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027

(11th Cir. 2004) (en banc), cert. denied, 544 U.S. 1035 (2005).

It is, moreover, the function of the Commissioner, and not the

courts, to resolve conflicts in the evidence and to assess the credibility of the

witnesses. Grant v. Richardson, 445 F.2d 656 (Sth Cir. 1971). Similarly, .

it is the responsibility of the Commissioner to draw inferences from the

evidence, and those inferences are not to be overturned if they are supported

□□

by substantial evidence. Celebrezze v. O’Brient, 323 F.2d 989, 990 (Sth

Cir. 1963).

Therefore, in determining whether the Commissioner’s

decision is supported by substantial evidence, the court is not to reweigh the

evidence, but is limited to determining whether the record as a whole

contains sufficient evidence to permit a reasonable mind to conclude that the □

claimant is not disabled. However, the court, in its review, must satisfy

itself that the proper legal standards were applied and legal requirements

were met. Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988).

I.

The plaintiff's sole argument is that “substantial evidence does

not support the Administrative Law Judge’s visual limitation findings” for

the period preceding April 6, 2015 (Doc. 24, p. 6).2 The law judge found □

that the plaintiff during that time period had decreased vision which limited

3A}l other arguments are forfeited in accordance with the Scheduling Order and

Memorandum Requirements, which directed the plaintiff to “identify with particularity

the discrete grounds upon which the administrative decision is being challenged” and

cautioned that “[a]ny contention for which these requirements are not met will be deemed

forfeited and not evaluated” (Doc. 15, p. 2).

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her to performing work requiring no more than frequent near visual acuity,

frequent depth perception and occasional peripheral vision (Tr. 697-98).

In making this determination, the law judge considered the

plaintiff's testimony that “her vision has progressively worsened” and that |

she “could no longer [] see to read a lot in 2012 and 2013, but she did not

see a physician due to financial constraints and lack of insurance” (Tr. 698,

see Tr. 727). He also noted that the plaintiff reported “visual changes” to a

consultative examiner in February 2013 and told a neurologist in January

2015 that she had blurry vision (Tr. 699). However, the law judge’

explained that there was no medical evidence prior to April 6, 2015,

supporting greater visual limitations than he included in the residual |

functional capacity. In fact, the law judge stated that the plaintiffs visual

residual functional capacity for the period before April 6, 2015, was “based

largely on the claimant’s testimony” (Tr. 700).*

‘The law judge found that the plaintiffs testimony of greater limitations was not

fully credible (Tr. 699-700). That determination is supported by substantial evidence

and is unchallenged by the plaintiff. Accordingly, any such contention is forfeited (see .

Doc. 15).

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_ The law judge’s determination that the medical evidence for

that period did not substantiate a more restrictive visual residual functional

capacity is supported by substantial evidence. The law judge relied upon

the testimony of medical expert Dr. Sugumaran, who stated that she “d[id]

n[o]t have a lot of information between 2011 and 2015” and that “[t]he first -

day I found a decrease in vision was April 6", 2015 after looking through the

medical record” (Tr. 718). Dr. Sugumaran was referring to a letter dated

April 6, 2015, from the plaintiff's ophthalmologist, Dr. Don J. Perez, which

pertinently stated (Tr. 652):

The above mentioned patient has been under my

care since 11/10/14. She was diagnosed with

Pathologic Myopia, Primary Open Angle

Glaucoma and Incipient Cataract. Her visual

acuity is 20/70 in the right eye and 20/80 in the left

eye with best correction. Her peripheral vision is

very poor, it was shown on the Visual Field test

performed in the office.

Dr. Perez’s letter was not accompanied by any treatment notes.

The law judge “afford[ed] great weigh[t]” to Dr. Sugumaran’s

opinion because she is “[a] well qualified vision specialist and reviewed all .

the evidence available. She responded to questions from me as well as the

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claimant’s representative. Her opinion is also the most recent of record”

(Tr. 700). Furthermore, the law judge gave “great weight” to the letter

submitted by Dr. Perez (id.), which underlies Dr. Sugumaran’s opinion of

the plaintiff's visual limitations.

The law judge then cogently summarized his reasoning for the

plaintiff's visual limitations (Tr. 700):

The claimant’s treatment is extremely sparse,

consisting of only a few appointments in some

years. The claimant only sought specialized

vision care once during this period. The claimant □

attributed her lack of treatment to financial

constraints. While this explanation is entirely

plausible, the lack of treatment still results in an

absence of findings to warrant a more restrictive

residual functional capacity. The claimant

acknowledged that she was able to prepare some

simple meals using a microwave, attend church

occasionally, shop some, take care of her personal

needs and perform limited housework.

The plaintiff argues that the law judge’s determination is not

supported by substantial evidence because (Doc. 24, p. 8):

... the opinion of the medical advisor at the ALJ

hearing contained a clear and unmistakeable [sic]

error. ([S]he stated that the first evidence of a

visual impairment was April 6, 2015. (T. 718).

While the letter from Dr. Perez was dated April 6,

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2015, he was referring to an examination dated

November 14, 2014. (T. 652). The ALJ

previously found that the claimant could not

engage in work activity which required near visual

acuity, as of November 10, 2014. (T. 15). There

was no rational basis to find that claimant became

disabled only as of April 6, 2015. □

The plaintiffs argument is meritless because, as the Commissioner points

out, while Dr. Perez states his first appointment with the plaintiff was in

November 2014 (Doc. 26, p. 7),

Dr. Perez’ letter ... is dated April 6, 2015, [and]

states that “her visual acuity is 20/70 in the right

eye and 20/80 in the left eye with the best

correction” (emphasis added) (Tr. 652). ... The

letter does not state it was at that level since Dr.

Perez began treatment in November 2014 (Tr.

652). Dr. Sugumaran testified there w[ere] no □

testing results in the record that would support a

different date and Plaintiff does not point to any....

Thus, based on the plain wording of Dr. Perez’s letter, the law judge could

reasonably conclude that the first medical evidence of the plaintiff's

decreased vision was April 6, 2015. See Biestek v. Berryhill, U.S. _;

139 S. Ct. 1148, 1154 (2019) (Substantial evidence is “such relevant’

evidence as a reasonable mind might accept as adequate to support a

conclusion.”). Notably, plaintiff’s counsel questioned Dr. Sugumaran at.

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the hearing, but he did not ask Dr. Sugumaran whether those test results

could be attributable to an earlier appointment (see Tr. 719-22).

The plaintiff also contends that the test results referenced in Dr.

Perez’s letter relate to November 2014 because that is when Dr. Perez

diagnosed the plaintiff with pathologic myopia, primary open angle’

glaucoma and incipient cataract (Doc. 24, p. 8; see Tr. 652). However, Dr.

Perez referred to the plaintiff's test results in the present tense; ie., the

plaintiff's visual acuity on April 6, 2015, and Dr. Perez’s diagnoses in

November 2014 do not, in themselves, shed light on the degree of the

plaintiffs visual impairment before April 6, 2015. See Wind v. Barnhart,

133 Fed. Appx. 684, 690 (11th Cir. 2005) (quoting McCruter v. Bowen, 791

F.2d 1544, 1547 (11th Cir. 1986) (“[a] diagnosis or a mere showing of ‘a’

deviation from purely medical standards of bodily perfection or normality’

is insufficient; instead, the [plaintiff] must show the effect of the impairment

on her ability to work.”); Moore v. Barnhart, 405 F.3d 1208, 1214 n.6 (11th

Cir. 2005) (It is the functional limitations that determine disability.).

Therefore, this argument does not compel the law judge to find the plaintiff

had greater visual impairments before April 6, 2015. See Adefemi v.

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Ashcroft, supra, 386 F.3d at 1026-27 (It is not sufficient for the plaintiff to

point to some evidence that supports her position; rather she must cite.

evidence that compels the finding she is advocating.).

The plaintiff emphasizes that the law judge had concluded in

his prior decision that the plaintiff's visual impairments were disabling as of

November 10, 2014 (Doc. 24, p. 8; see Tr. 14-19). However, the plaintiff

appealed that decision, and it was vacated. Therefore, the plaintiff may not

rely upon that more favorable determination in challenging this decision.

Significantly, the Appeals Council expressly questioned in its remand Order .

the law judge’s finding that Dr. Perez’s letter established that the plaintiff

had disabling visual limitations as of November 10, 2014 (Tr. 743).°

*The Appeals Council specified (Tr. 743):

During the hearing, the Administrative Law Judge suggested an

onset date of November 10, 2014 because Don Perez, M.D., the

claimant’s treatment provider, indicated in a letter that he began

seeing her for vision issues on that day (Exhibit B21F).

However there is no underlying treatment record from him that

date. Moreover, there is not medical expert opinion or other

opinion evidence that supports that date. Therefore,. further

consideration of the claimant’s onset date, with medical expert

evidence, is warranted. □

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In sum, the plaintiff has not identified any medical evidence

supporting, much less compelling, greater visual limitations than determined

by the law judge for the time period before April 6, 2015. As explained in

Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003), “the claimant

bears the burden of proving that [s]he is disabled, and consequently, [s]he is

responsible for producing evidence in support of h[er] claim.” See 20

C.F.R. 404.1512; 416.912 (it is the plaintiff's burden to present evidence.

showing how her impairment affects her functioning during the alleged

disability period). Significantly, the plaintiff was represented by counsel

during the recent administrative proceedings. Therefore, the burden was on

the plaintiff and her lawyer to obtain medical evidence to prove the

plaintiff's claim. See id.

In this regard, Dr. Sugumaran testified that Dr. Perez’s missing

treatment records were crucial in determining the plaintiffs visual .

impairments (Tr. 720). Significantly, the plaintiff stated that Dr. Perez’s

office had her treatment records, but that she would have to pay for copies

(Tr. 724). Plaintiff’s counsel acknowledged the importance of those records

and had the following exchange with the law judge (Tr. 739):

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ATTY: It appears that Dr. Perez may have some

records that we are missing because we have that

letter from him from 2015 but no test results.

ALJ: Well you call and figure it out. If you need

more time, you can call the office. You can track

it down.

ATTY: All right. I think that maybe (sic)

essential.

However, the plaintiff did not submit any records from Dr. Perez, or any

other medical evidence, substantiating the degree of the plaintiff's visual

limitations during the time period before April 6, 2015 (see Doc. 24, pp. 6—

8). Therefore, the plaintiff has clearly failed to present evidence

compelling the law judge to find that she had greater visual limitations

during the pertinent time period.

The plaintiff also argues that the law judge “err[ed] in

quantifying the plaintiff's visual limitations in terms of frequency [e.g.,

occasional, frequent, constant] rather than quality” (Doc. 24, p. 6) (emphasis

omitted). More specifically, the plaintiff contends that a limitation to

“frequent” visual acuity is “nonsensical” because “generally a person can

either see a certain sized object or cannot see it” (id., pp. 8, 9).

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The plaintiff's argument is off the mark. Physicians regularly

opine quantitative visual limitations to accommodate individuals who have

some, but not total, vision loss. See, e.g., Arnold v. Colvin, No. 3:14-cv-

1064-J-MCR, 2016 WL 1170907 at *3 (M.D. Fla.) (listing cases). □

Concomitantly, the Dictionary of Occupational Titles (DOT) uses the terms

constant, frequent and occasional to distinguish between vision requirements

for jobs. For example, the plaintiff's previous work as a service observer

involves frequent near acuity, but no far acuity or depth perception. See DOT

239.367-026, 1991 WL 672228.

The plaintiff cites to Reed v. Berryhill, 8:17-cv-679-T-DNF,

2018 WL 4520363 (M.D. Fla.), and Gainey v. Commissioner of Social

Security, 6:12-cv-1579-Orl-DAB, 2014 WL 505117 at *6 (M.D. Fla.), for

her contention that visual limitations may not be quantified: however, these

cases are factually inapposite. Thus, the law judge in Gainey “erred in not

recognizing that Plaintiff was blind in her right eye.” 2014 WL 505117 at

*6. In Reed, accommodations were not included for the plaintiff's

“blindness in her left eye.” 2018 WL 4520363 at *4. In contrast to the

undisputed medical evidence of total eye blindness in Reed and Gainey, the

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plaintiff presented no medical evidence whatsoever substantiating her visual

acuity and depth perception limitations for the pertinent time period.

As the Commissioner notes, the plaintiff's contention that the

law judge “provided no analysis explaining how Plaintiff's visual acuity of

20/70 in one eye and 20/80 in the other eye limits her to only frequent near

acuity” is meritless because it is “based upon the false premise that the ALJ

determined [that the plaintiff] had visual acuity of 20/70 in one eye and 20/80

[in] her left eye prior to April 6, 2015” (Doc. 26, p. 8). The law judge found

that prior to April 6, 2015, the plaintiff “could perform work requiring

frequent near visual acuity; occasional peripheral visual acuity and frequent

depth perception” (Tr. 697-98). He found further that on and after that date

the plaintiff “could perform no work requiring visual acuity; peripheral

visual acuity or depth perception” (Tr. 701). There is nothing inconsistent

about those findings.

It is, therefore, upon consideration,

ORDERED: .

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That the decision of the Commissioner is hereby AFFIRMED.

The Clerk shall enter judgment in accordance with this Order and CLOSE

this case.

4 ath

DONE and ORDERED at Tampa, Florida, this day

of September, 2020.

Piiieooe SF Wid

THOMAS G. WILSON

UNITED STATES MAGISTRATE JUDGE

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