# Foster v. Commissioner of Social Security

> District Court, S.D. Illinois · June 30, 2023

URL: https://www.frixlaw.com/law-library/cases/10156733

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** June 30, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

JAMESETTA F.,1

Plaintiff,

v. Case No. 3:22-CV-831-NJR

COMMISSIONER OF SOCIAL
SECURITY,

Defendant.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:
In accordance with 42 U.S.C. §405(g), Plaintiff seeks judicial review of the final
agency decision denying her application for Disability Insurance Benefits (DIB) pursuant
to 42 U.S.C. § 423.
BACKGROUND
Plaintiff applied for DIB alleging an onset date of January 31, 2017. (Tr. 12).
Plaintiff’s claim was initially denied on October 12, 2017, and upon reconsideration on
April 12, 2018 (Tr. 78-91). On May 21, 2018, Plaintiff filed a request for a hearing by an
Administrative Law Judge (ALJ). (Tr. 119). After holding an evidentiary hearing, an ALJ
denied the application on November 18, 2021. (Tr. 20). The Appeals Council denied
Plaintiff’s request for review on March 16, 2022, making the ALJ’s decision the final

1 Plaintiff’s full name will not be used due to privacy concerns. See FED. R. CIV. P. 5.2(c) and the Advisory
Committee Notes thereto.
agency decision subject to judicial review. (Tr. 26-30). Accordingly, Plaintiff exhausted
administrative remedies and filed a timely complaint with this Court.
ISSUE RAISED BY PLAINTIFF

Plaintiff raises the following issues:
1. The ALJ failed to properly evaluate residual functional capacity (RFC).

2. The ALJ failed to properly evaluate credibility.

(Doc. 13, p. 4).
LEGAL STANDARD
To qualify for DIB, a claimant must be disabled within the meaning of the
applicable statutes. Under the Social Security Act, a person is disabled if he or she has an
“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 twelve
months.” 42 U.S.C. § 423(d)(1)(a).
To determine whether a claimant is disabled, the ALJ considers the following five
questions in order: (1) Is the claimant presently employed? (2) Does the claimant have a
severe impairment? (3) Does the impairment meet or medically equal one of a list of
specific impairments enumerated in the regulations? (4) Is the claimant unable to perform

his or her former occupation? and (5) Is the claimant unable to perform any other work?
See 20 C.F.R. § 404.1520.
An affirmative answer at either step three or step five leads to a finding that the
claimant is disabled. A negative answer at any step, other than at step three precludes a
finding of disability. The claimant bears the burden of proof at steps one through four.
Once the claimant shows an inability to perform past work, the burden shifts to the

Commissioner to show the claimant’s ability to engage in other work existing in
significant numbers in the national economy. Zurawski v. Halter, 245 F.3d 881, 886 (7th
Cir. 2001).
It is important to recognize that the scope of judicial review is limited. “The
findings of the Commissioner of Social Security as to any fact, if supported by substantial
evidence, shall be conclusive. . . .” 42 U.S.C. § 405(g). Accordingly, this Court is not tasked

with determining whether or not Plaintiff was, in fact, disabled at the relevant time, but
whether the ALJ’s findings were supported by substantial evidence and whether any
errors of law were made. Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003).
The Supreme Court defines substantial evidence as “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill,

139 S. Ct. 1148, 1154 (2019) (internal citations omitted).
In reviewing for “substantial evidence,” the entire administrative record is taken
into consideration, but this Court does not reweigh evidence, resolve conflicts, decide
questions of credibility, or substitute its own judgment for that of the ALJ. Burmester v.
Berryhill, 920 F.3d 507, 510 (7th Cir. 2019). While judicial review is deferential, it is not

abject; this Court does not act as a rubber stamp for the Commissioner. See Parker v.
Astrue, 597 F.3d 920, 921 (7th Cir. 2010), and cases cited therein.
EVIDENTIARY RECORD
The Court has reviewed and considered the entire evidentiary record in preparing
this Memorandum and Order. The following summary of the record is directed to the

points raised by Plaintiff.
I. Evidentiary Hearing
Plaintiff was represented at the evidentiary hearing on May 4, 2020. (Tr. 32). The
ALJ began by examining Dr. Jeffrey Horwitz, M.D. (“Dr. Horwitz”). (Tr. 35). Dr. Horwitz
is board certified in ophthalmology. Dr. Horwitz never examined or treated Plaintiff.

Instead, Dr. Horwitz reviewed Exhibits 1F through 13F in Plaintiff’s medical file.
Dr. Horwitz had some questions for Plaintiff. (Tr. 36). During his questioning, Plaintiff
explained that she last had a botulinum injection in 2016 or 2017. (Id.). Plaintiff also is
using the ptosis crutch on her glasses, but it is not doing anything for the
blepharospasm. 2 (Tr. 38). The ptosis crutch helps her with driving, and Plaintiff can drive

longer than ten minutes. (Tr. 39). As far as the blepharospasm episodes, Plaintiff said they

2 The Court understand ptosis is “a drooping eyelid.” Hammerslough v. Berryhill, 758 F. App’x 534, 536 (7th
Cir. 2019). “A ptosis crutch is a device intended to be mounted on the spectacles of a patient who has
ptosis (drooping of the upper eyelid as a result of faulty development or paralysis) to hold the upper
eyelid open.” 21 C.F.R. § 886.5600.

“Blepharospasm is a type of muscle contraction in which the eyelids are repeatedly and involuntarily
forced shut.” Albright v. Apfel, 1999 WL 1129102, at *2 (N.D. Ill. Dec. 7, 1999) (citing DORLAND'S
ILLUSTRATED MEDICAL DICTIONARY 1089, 2 (28th ed.1994)). “A blepharospasm is defined as ‘a chronic,
unremitting, bilateral, variably progressive dysfunction of the nerve that controls the muscles around the
eye.’” Id. “It manifests itself as an uncontrollable, forcible closure of the eyelids.” Id. “It often affects both
at once, but it can also affect only one eye.” Id. “In some cases, other muscles in the face can twitch as
well, especially around the cheek and brow.” Id. “Severe blepharospasm can cause the eyelids to be
forcibly closed for a duration longer than the typical blink reflex, causing a variable interruption in the
ability to see.” Id; see also Smith v. Berryhill, 2018 WL 4679584, at *1 (N.D. Ill. Sept. 28, 2018) (noting
blepharospasm is a “neurologic disorder characterized by excessive blinking and forced involuntary
closure of the eyelids”).
vary from day-to-day. (Tr. 39-40). Sometimes they may last one minute, or they may last
hours. (Tr. 40). Sometimes she has multiple episodes in one day. (Id.).

The ALJ then asked Dr. Horwitz about Plaintiff’s medically determinable
impairments. (Tr. 41). Dr. Horwitz explained that her main diagnosis is benign essential
blepharospasm. (Id.). Next, Dr. Horwitz explained that Plaintiff also has ptosis. (Tr. 42).
Then the ALJ asked about Dr. Horwitz’s opinion as to whether or not Plaintiff’s
impairments individually or in combination met or equaled any of the listings of the
Commissioner. (Tr. 44). Dr. Horwitz explained that he did not think that her impairments

met or equaled any of the listings. (Tr. 45-46). Dr. Horwitz continued testifying that
Plaintiff “should not be at unprotected heights, she shouldn’t climb ladders or scaffolds,
she shouldn’t do commercial driving, she should not be around moving machinery and
since you never know when her eyelids are going to be shut then that would, those would
be limitations, actually complete limitations for her.” (Tr. 46). Dr. Horwitz also added

“[y]ou know, even though—and this is for you to decide of course, the, I guess it’s for the
vocational expert to decide that even if she doesn’t meet or equal the listing if someone
with these intermittent problems, never knows when her eyelids are going to close, how
long it’s going to last and all that, whether there are indeed jobs that she can do and that’s I
certainly think that she might have a lot of difficulty in a lot of different areas.” (Tr. 50) (emphasis

added). Dr. Horwitz could not state a percentage of the day that Plaintiff would be unable
to use her eyes or be off task because he is not “able to say with any certainty exactly how
long her eyes stay closed or how frequently during the day but it appears to be that
greater than 50% of the time she’s able to keep them open and that for relatively short
periods of time, although she testified sometimes it’s for hours, but that wasn’t along with
that, blepharospasm.” (Tr. 54).

A vocational expert (“VE”) also testified at the hearing. The ALJ asked him a
hypothetical question that corresponded to the RFC assessment—whether there would
work for an individual with no exertional limitations, with the same age, education, and
work experience as Plaintiff. (Tr. 66). The VE testified that there are approximately 25,000
medium packer jobs nationally, approximately 10,000 medium crate liner jobs nationally,
and 50,000 medium laundry worker jobs nationally. (Tr. 67-68). The ALJ also asked the

VE about the tolerance for time off task in unskilled work. (Tr. 68). The VE answered
“[s]omewhere between nine and 10% of the complete day beyond regular breaks.” (Id.).
As far as tolerance for absences, the VE noted “[u]nexcused would be three to five days
a year, excused could be to one day a month, but that’s up to the employer.” (Id.).
II. Relevant Medical Records

In June 2016, Plaintiff reported that she was having blepharospasms daily and
“[c]onstantly feels like she is fighting to keep her eyes open.” (Tr. 296). Plaintiff received
treatment in the form of Botox injections in both eyes at Quantum Vision Centers. (Id).
A couple months later, Plaintiff noted that “in the past 6 weeks she is still having spasms
in both eyes. Maybe even more often. She thinks the Botox last time didn’t help as much

as it has in the past.” (Tr. 302). Michael Jones, M.D. (“Dr. Jones”) confirmed that Botox
injections were “clearly not enough to control the blepharospasm.” (Id.).
In April 2017, Plaintiff was evaluated by Kevin Wright, M.D. (“Dr. Wright”).
(Tr. 327). Plaintiff reported that her last Botox injections “caused itching and bumps
inside and out the lids.” (Id.). She also was unsure if the injections helped. Dr. Wright
observed that Plaintiff’s blepharospasm was “moderate.” (Id.). Plaintiff reported that she

can see pretty good when she forces her eyes open. (Id.).
In May 2017, Plaintiff was examined by Wen Chen, M.D. (“Dr. Chen”). (Tr. 334).
Dr. Chen observed “significant blepharospasm in both eyes.” (Tr. 335). Dr. Chen
continued reporting that “[Plaintiff] definitely has some degree of difficulty with her
daily activity due to significant blepharospasm.” (Id.). The adjudicator then asked Dr.
Chen to clarify his answers to several questions regarding his examination. Dr. Chen

clarified that claimant was constantly blinking. (Tr. 337-339).
In September 2017, Plaintiff was seen by Geoffrey Hill, M.D. (“Dr. Hill”). (Tr. 345).
Plaintiff reported that her blepharospasms have “gradually gotten worse.” (Id.). Plaintiff
explained her vision is “ok” with glasses and when she does not have spasms. (Id.).
Plaintiff had intermittent eye pain with headaches and wears tinted eyeglasses at all

times. (Id.). Later in September, Plaintiff had an optometric examination performed by
Nathan Noakes, O.D. (Tr. 347). Plaintiff reported that her eyelids close and will reopen
after different periods of time. (Id.).
In September 2018, Christina Levi from Crown Vision Center attempted to
examine Plaintiff, but was unable to observe intra ocular tensions even after holding her

eyelids. (Tr. 360). Also, Levi was only able to perform a “very quick view” of C/D ratio
observation because Plaintiff’s eye kept closing. (Id.).
In April 2019, Plaintiff was evaluated by Alexander Barsam, M.D. (“Dr. Barsam”).
(Tr. 364). Plaintiff reported that she has to hold her eyes open some days and “[f]eels she
is fighting all day to keep eyes open.” (Id.). Plaintiff also stated that “she can no longer
read for a long period of time and has trouble driving, which is why her sister brought

her to her appointment today.” (Id.). Her blepharospasms were rated the most severe on
the Jankovic scale (Tr. 44-45; 365). At the same time, the frequency of her blepharospasms
were rated a two out of four on the Jankovic scale. (Tr. 45; 365). Dr. Barsam noted Plaintiff
had a significant functional impairment because of the blepharospasm. (Tr. 366). Gabriela
Espinoza, M.D., “examined the [Plaintiff] with the resident and [ ] agree[d] with the
findings and plan of care as documented by the resident.” (Tr. 367).

III. State Agency Consultants’ Opinions
In November 2017, Julio Pardo, M.D. (“Pardo”) assessed Plaintiff’s RFC based on
a review of the record. (Tr. 71-79). Pardo indicated that Plaintiff was limited in both eyes
due to “significant blepharospasms.” (Tr. 76). In April 2018, Lenore Gonzalez, M.D.
(“Gonzalez”), the second state agency consultant, agreed with Pardo’s opinion. (Tr. 81-

91). Gonzalez noted that Plaintiff “[r]eports no worsening, no new impairments, list one
new Chiropractic source which she was need in 9/2017, last decision was made on
10/12/17 . . . [n]o new evidence to add to assessment.” (Tr. 86).
DECISION OF THE ALJ
The ALJ followed a five-step sequential evaluation process for determining

whether Plaintiff is disabled. She determined if the claimant has not engaged in
substantial gainful activity since the alleged onset date. (Tr. 15). The ALJ found that
Plaintiff has the following severe impairments: ptosis of the eye and blepharospasms.
(Id.).
The ALJ determined that Plaintiff does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed impairments
within the meaning of the Social Security Act. ([d.). Thus, the ALJ found that Plaintiff had
the RFC to perform a full range of work at all exertional levels but with the following
non-exertional limitations:

e never climb ladders, ropes, or scaffolds;
e no exposure to hazards such as unprotected or unprotected moving
mechanical parts;
e not engage in any commercial driving;
e not work in an environment with bright lights such as sunlight and
should be allowed to be allowed to wear sunglasses indoors;
e not work in an environment with very low humidity such as that in a
desert setting.
(Tr. 15-16). The ALJ found that Plaintiff was capable of performing her past relevant work
as a Sales Clerk. (Tr. 19). The ALJ also found that Plaintiff was “able to perform the work
as generally performed, per the vocational expert's testimony.” (Tr. 19).
DISCUSSION
Plaintiff argues “[t]he ALJ failed to recognize that her qualifying statements, that
Plaintiff can function when she can wear her crutched eyewear and she has normal acuity
when she is able to keep her eyes open, define the issue.” (Doc. 13, p. 8). Plaintiff's
argument follows that “[t]he ALJ failed to evaluate whether Plaintiff can wear her
crutched eyewear or keep her eyes open eight (8) hours per day, five (5) days per week,
as required by Social Security law.” (Id.). Thus, Plaintiff contends that “[t]he ALJ failed to

Page 9 of 11

build an accurate and logical bridge between the evidence, that Plaintiff cannot wear her
crutched eyewear or keep her eyes open forty (40) hours per week, and the conclusion

that Plaintiff can sustain full-time employment.” (Id.).
The Court agrees. The Seventh Circuit has “repeatedly held that although an ALJ
does not need to discuss every piece of evidence in the record, [however] the ALJ may
not analyze only the evidence supporting her ultimate conclusion while ignoring the
evidence that undermines it.” Moore v. Colvin, 743 F.3d 1118, 1123 (7th Cir. 2014). Here,
the ALJ ignored evidence that corroborates Plaintiff’s subjective allegations with the

physical examination findings. For instance, the ALJ noted that “records prior to the date
last insured generally document intact visual acuity, full fields of view, and generally
intact ability to maintain normal vision patterns despite rapid blinking and suggestions
of visual fatigue when using devices such as crutched eyewear.” (Tr. 17). The ALJ
supports this assertion by pointing to Dr. Chen’s “supplementary statement to clarify

that [Plaintiff] did not need to hold her eyes open during testing and that her frequent
blinking would not affect her visual acuity.” (Id.). Also, the ALJ points to evaluations in
September 2017 noting, “[t]here were no indications of spasm during these evaluations
and examination of the structure of the eye continued to note no deficits . . . .” (Id.).
When the ALJ could no longer ignore evidence corroborating Plaintiff’s subjective

allegations, the ALJ took issue with Plaintiff’s lack of treatment:
More recent evaluations in 2018 and 2019 suggest gradual worsening of her
condition, including reports of difficulty reading and no longer feeling
comfortable driving due to frequent blinking or trouble keeping her eyes
open, yet I note that the claimant has not engaged in any substantive
treatment, therapy or interventions beyond routine eye exams and
consultative examinations for the purpose seeking disability benefits. As
part of the April 2019 evaluation, she was provided with several options to
manage and improve her condition, including use of a different chemical
compound to treat muscular spasm of the eyelid, surgical intervention to
weaken the muscle of the eyelid and allow easier opening and closing, or
crutched eyewear to keep the eye open. (9F/2, 4; 10F; 11F).
(Tr. 18) (emphasis added). Not only does Plaintiff wear crutched eyewear, but also
clinicians regularly documented Plaintiff's inability to keep her eyes open during their
physical examinations. (Tr. 302, 335, 360, 365, 366, 337). Accordingly, the Court finds that
the ALJ failed to build the required “logical bridge” from the evidence to the conclusion
that Plaintiff can sustain full-time employment.
CONCLUSION
The Commissioner’s final decision denying Plaintiff's application for social
security disability benefits is REVERSED and REMANDED to the Commissioner for
rehearing and reconsideration of the evidence, pursuant to sentence four of 42 U.S.C.
§405(g).
The Clerk of Court is directed to enter judgment in favor of Plaintiff.
IT IS SO ORDERED.
DATED: June 30, 2023 7 g 5

NANCY J. ROSENSTENGEL
Chief U.S. District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10156733. Public record. Not legal advice.