# Leverett v. O'Malley (CONSENT)

> District Court, M.D. Alabama · February 16, 2024

URL: https://www.frixlaw.com/law-library/cases/9988597

## Case

- **Court:** District Court, M.D. Alabama
- **Decided:** February 16, 2024
- **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 MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
MARCUS ANTHONY LEVERETT, )
)
Plaintiff, )
)
v. ) Case No. 2:23-cv-400-CWB
)
MARTIN O’MALLEY,1 )
Commissioner of Social Security, )
)
Defendant. )
MEMORANDUM OPINION AND ORDER
I. Introduction and Administrative Proceedings
Marcus Anthony Leverett (“Plaintiff”) filed both an application for Disability Insurance
Benefits under Title II of the Social Security Act and an application for Supplemental Security
Income under Title XVI of the Social Security Act on February 18, 2020—initially alleging
disability onset as of January 15, 2018 but later amending to January 1, 2020—due to eye/vision
problems, hip/leg pain, diabetes, and high blood pressure. (Tr. 11, 42, 61-62, 77-78, 92-93, 95-
96, 112-15).2 Plaintiff’s claims were denied at the initial level on January 14, 2021, and again
after reconsideration on August 20, 2021. (Tr. 10, 94, 112-13, 131). Plaintiff then requested
de novo review by an administrative law judge (“ALJ”). (Tr. 10, 133). The ALJ subsequently
heard the case on June 22, 2022, at which time testimony was given by Plaintiff (Tr. 36, 44-56)
and by a vocational expert (Tr. 56-59). The ALJ took the matter under advisement and issued
a written decision on December 14, 2022 finding that Plaintiff was not disabled prior to

1 Martin O’Malley became Commissioner for the Social Security Administration on
December 20, 2023 and is automatically substituted as a party pursuant to Fed. R. Civ. P. 25(d).
2 References to pages in the transcript are denoted by the abbreviation “Tr.”
December 30, 2020 but further finding that Plaintiff did become disabled on that date and
continued to be disabled through the date of the decision. (Tr. 10-24).
The ALJ’s written decision contained the following enumerated findings:
1. The claimant meets the insured status requirements of the Social Security Act
through March 31, 2035.

2. The claimant has not engaged in substantial gainful activity since January 15,
2018, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).

3. Since the amended alleged onset date of disability, January 1, 2020, the
claimant has had the following severe impairments: hypertension, type II
diabetes mellitus, and obesity. Beginning on the established onset date of
disability, December 30, 2020, the claimant has had the following severe
impairments: hypertension, type II diabetes mellitus, obesity, history of
advanced diabetic retinopathy, retinal detachment, cataracts, and statutory
blindness (20 CFR 404.1520(c) and 416.920(c)).

4. Prior to December 30, 2020, the date the claimant became disabled, the claimant
did not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925 and 416.926).

5. After careful consideration of the entire record, I find that prior to
December 30, 2020, the date the claimant became disabled, the claimant had
the residual functional capacity to perform medium work as defined in
20 CFR 404.1567(c) and 416.967(c) except: occasionally lift/carry up to
50 pounds and frequently lift/carry up to 25 pounds; frequently climb ramps
and stairs; never climb ladders, ropes or scaffolds; occasionally [sic] exposure
to extreme cold and extreme heat; occasional to vibration; never work around
unprotected heights or hazardous moving mechanical parts; limited to oral
instructions; near and far acuity are not present, and depth perception and
accommodation would not be present.

6. Prior to December 30, 2020, the claimant was capable of performing past
relevant work as a disc jockey, [DOT#159.147-014], sedentary, SVP 5. This
work did not require the performance of work-related activities precluded by
the claimant’s residual functional capacity (20 CFR 404.1565 and 416.965).

7. Since December 30, 2020, the severity of the claimant’s impairments has met
the definition of Statutory Blindness and the criteria of section 2.03A of 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 416.920(d)
and 416.925).
8. The claimant was not disabled prior to December 30, 2020, (20 CFR
404.1520(f) and 416.920(f)) but became disabled on that date and has continued
to be disabled through the date of this decision (20 CFR 404.1520(d) and
416.920(d)).

(Tr. 13, 14, 15, 21, 22, 24). On April 21, 2023, the Appeals Council denied Plaintiff’s request for
review (Tr. 1-5), thereby rendering the ALJ’s decision the final decision of the Commissioner.
See, e.g., Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
Plaintiff now asks the court to remand the case for a new hearing and further consideration.
(Doc. 5 at p. 12). The court construes Plaintiff’s supporting brief (Doc. 5) as a motion for
summary judgment and the Commissioner’s opposition brief (Doc. 6) as a competing motion for
summary judgment. As contemplated by 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of
Civil Procedure, the parties have consented to the exercise of full civil jurisdiction by a
United States Magistrate Judge (Docs. 7, 8), and the undersigned finds that the case is ripe for
review pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Upon consideration of the parties’
submissions, the relevant law, and the record as a whole, the court concludes that Plaintiff’s motion
for summary judgment is due to be denied, that the Commissioner’s motion for summary judgment
is due to be granted, and that the final decision is due to be affirmed.
II. Standard of Review and Regulatory Framework
The court’s review of the Commissioner’s decision is a limited one. Assuming the proper
legal standards were applied by the ALJ, the court is required to treat the ALJ’s findings of fact as
conclusive so long as they are supported by substantial evidence. 42 U.S.C. § 405(g); Graham v.
Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). “Substantial evidence is more than a scintilla,”
but less than a preponderance, “and is such relevant evidence as a reasonable person would accept
as adequate to support a conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158
(11th Cir. 2004) (“Even if the evidence preponderates against the Commissioner’s findings, [a
reviewing court] must affirm if the decision reached is supported by substantial evidence.”)
(citations omitted). The court thus may reverse the ALJ’s decision only if it is convinced that the
decision was not supported by substantial evidence or that the proper legal standards were not
applied. See Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991). Reversal is not warranted

simply because the court itself would have reached a different result. See Edwards v. Sullivan,
937 F.2d 580, 584 n.3 (11th Cir. 1991). Despite the deferential nature of its review, however, the
court must look beyond those parts of the record that support the decision, must view the record
in its entirety, and must take account of evidence that detracts from the evidence relied on in the
decision. See Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986); see also Walker v. Bowen,
826 F.2d 996, 999 (11th Cir. 1987).
To qualify for disability benefits and establish entitlement for a period of disability, a
person must be unable 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).3 To make such a determination, the ALJ employs a five-step sequential
evaluation process. See 20 C.F.R. §§ 404.1520 & 416.920.
(1) Is the person presently unemployed?

(2) Is the person’s impairment severe?

(3) Does the person’s impairment meet or equal one of the specific impairments set
forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1 [the Listing of Impairments]?

(4) Is the person unable to perform his or her former occupation?

3 A “physical or mental impairment” is one resulting from anatomical, physiological, or
psychological abnormalities that are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques. 42 U.S.C. § 423(d)(3).
(5) Is the person unable to perform any other work within the economy?

An affirmative answer to any of the above questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative answer
to any question, other than step three, leads to a determination of “not disabled.”

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).4
The burden of proof rests on the claimant through step four. See Phillips v. Barnhart, 357
F.3d 1232, 1237-39 (11th Cir. 2004); Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003).
A claimant establishes a prima facie case of a qualifying disability once he or she has carried the
burden of proof from step one through step four. Id. At step five, the burden shifts to the
Commissioner, who must then show that there are a significant number of jobs in the national
economy that the claimant can perform. Id.
In order to assess the fourth and fifth steps, the ALJ must determine the claimant’s
Residual Functional Capacity (“RFC”). Phillips, 357 F.3d at 1238-39. The RFC is what the
claimant is still able to do despite the claimant’s impairments and is based on all relevant medical
and other evidence. Id. It may contain both exertional and nonexertional limitations. Id. at 1242-
43. At the fifth step, the ALJ considers the claimant’s RFC, age, education, and work experience
to determine if there are jobs available in the national economy that the claimant can perform. Id.
at 1239. To do so, the ALJ can use either the Medical Vocational Guidelines (“grids”), see
20 C.F.R. pt. 404 subpt. P, app. 2, or call a vocational expert (“VE”). Id. at 1239-40. The grids

4 McDaniel is an SSI case arising under Title XVI. Nonetheless, because the same sequence
applies to claims for disability insurance benefits brought under Title II, SSI cases are
appropriately cited as authority in Title II cases, and vice versa. See, e.g., Ware v. Schweiker,
651 F.2d 408, 412 (5th Cir. 1981); Smith v. Comm’r of Soc. Sec., 486 F. App’x 874, 876 n.*
(11th Cir. 2012) (“The definition of disability and the test used to determine whether a person has
a disability is the same for claims seeking disability insurance benefits or supplemental security
income.”).
allow the ALJ to consider factors such as age, confinement to sedentary or light work, inability to
speak English, educational deficiencies, and lack of job experience. Each factor can independently
limit the number of jobs realistically available to an individual, and combinations of these factors
yield a statutorily-required finding of “Disabled” or “Not Disabled.” Id. at 1240.

III. Issue on Appeal
Plaintiff raises one issue on appeal—arguing that the ALJ erred in not finding the
impairments of diabetic retinopathy, vision loss, retinal detachment, and cataracts to be severe
impairments prior to December 30, 2020. (Doc. 5 at p. 2). The Commissioner contends that
substantial evidence supported the ALJ’s RFC determination and that Plaintiff failed to prove
that he was disabled prior to December 30, 2020. (Doc. 6 at p. 1).
IV. Discussion
Plaintiff asserts that the medical evidence of record, as summarized in the ALJ’s decision,
supports a finding that his diabetic retinopathy, vision loss, retinal detachment, and cataracts were
severe impairments prior to December 30, 2020. (Doc. 5 at p. 11). In response, the Commissioner

contends that the ALJ was not required to identify every severe impairment at step two of the
sequential evaluation process and that the ALJ properly considered the relevant medical and other
evidence in assessing Plaintiff’s RFC prior to December 30, 2020. (Doc. 6 at pp. 7-8).
“[A] physical or mental impairment must be established by objective medical evidence
from an acceptable medical source. [The Agency] will not use [a claimant’s] statement of
symptoms, a diagnosis, or a medical opinion to establish the existence of an impairment(s).”
20 C.F.R. §§ 404.1521, 416.921. An impairment or combination of impairments is “severe” if it
“significantly limits [the plaintiff’s] physical or mental ability to do basic work activities”5 and
persists for at least twelve consecutive months. 20 C.F.R. §§ 404.1520(c), 416.920(c),
404.1505(a), and 416.905(a). “[T]he mere diagnosis of [a condition] says nothing about the
severity of the condition.” Crans v. Berryhill, No. 3:16-CV-914, 2017 WL 4683933 at *5

(M.D. Ala. Oct. 18, 2017) (quoting Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988)). “[A]
diagnosis or a mere showing of ‘a deviation from purely medical standards of bodily perfection or
normality’ is insufficient; instead, the claimant must show the effect of the impairment on her
ability to work.” Wind v. Barnhart, 133 F. App’x 684, 690 (11th Cir. 2005) (quoting McCruter v.
Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986)). Plaintiff bears the burden of proving that an
impairment is severe. See Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001).
“Step two is a threshold inquiry,” McDaniel, 800 F.2d at 1031, which acts as a “filter” to
eliminate claims involving no substantial impairment, Jamison v. Bowen, 814 F.2d 585, 588
(11th Cir. 1987). “If the ALJ finds a claimant does not have a ‘severe’ impairment or combination
of impairments, she should conclude the claimant does not have a disability.” Vangile v. Comm’r,

Soc. Sec. Admin., 695 F. App’x 510, 513 (11th Cir. 2017). In the Eleventh Circuit, “the finding of
any severe impairment, whether or not it qualifies as a disability and whether or not it results from
a single severe impairment or a combination of impairments that together qualify as severe, is
enough to satisfy the requirement of step two.” Id. When an ALJ recognizes at least one severe
impairment, the ALJ is not required to identify additional impairments at step two if the decision

5 Basic work activities are “the abilities and aptitudes necessary to do most jobs,” such as
“walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; [c]apacities
for seeing, hearing, and speaking; [u]nderstanding, carrying out, and remembering simple
instructions; [u]se of judgment; [r]esponding appropriately to supervision, co-workers and usual
work situations; and [d]ealing with changes in a routine work setting.” 20 CFR §§ 404.1522(b),
416.922(b).
demonstrates that the ALJ properly considered all impairments at subsequent steps. Tuggerson-
Brown v. Comm’r of Soc. Sec., 572 F. App’x 949, 951 (11th Cir. 2014).
At the fourth step of the sequential evaluation process, an ALJ must consider all medically
determinable impairments, not just the “severe” impairments identified at step two. Id.; 20 C.F.R.

§§ 404.1545(a)(2); 416.945(a)(2). The ALJ’s responsibility is met when she considers all
medical evidence in the record by referencing the claimant’s “combination of impairments” at
step three and stating that she considered “all symptoms” in assessing the RFC. Tuggerson-Brown,
572 F. App’x at 951-52. Importantly, the “mere existence” of an impairment does not reveal its
effect on a claimant’s ability to work or undermine RFC findings. Moore v. Barnhart, 405 F.3d
1208, 1213 n.6 (11th Cir. 2005).
At step two in this case, the ALJ satisfied the requirements of the threshold inquiry by
finding that on January 1, 2020 Plaintiff had severe impairments—namely hypertension, type II
diabetes mellitus, and obesity. (Tr. 14); see Jamison, 814 F.2d at 588 (“[T]he finding of any severe
impairment, whether or not it qualifies as a disability and whether or not it results from a single

severe impairment or a combination of impairments that together qualify as severe, is enough to
satisfy the requirement of step two.”). Because the ALJ found that Plaintiff had at least one severe
impairment prior to December 30, 2020, the ALJ was not required to identify all of Plaintiff’s
severe impairments before moving to step three of the sequential evaluation process. See
Tuggerson-Brown, 572 F. App’x at 951-52; Packer v. Comm’r, Soc. Sec. Admin., 542 F. A’ppx
890, 892 (11th Cir. 2013) (“[S]ince the ALJ proceeded beyond step two, any error in failing to
find that [the claimant] suffers from the additional severe impairments of degenerative joint disease
of the right knee or varicose veins would be rendered harmless.”); Delia v. Comm’r of Soc. Sec.,
433 F. App’x 885, 887 (11th Cir. 2011) (although the ALJ erred in finding that plaintiff’s mental
impairments were not severe, such error was harmless because the ALJ found other severe
impairments at step two and considered the mental impairments at later steps).
Although the ALJ did not err at step two, the court must still review whether or not the
ALJ considered all of Plaintiff’s impairments, regardless of severity, in performing the next steps

of the sequential evaluation process. “[A]s long as the ALJ considered Plaintiff’s severe
impairments in combination with Plaintiff’s non-severe impairments – including [his] alleged
mental impairments – any potential error is harmless.” Branco v. Comm’r of Soc. Sec., No. 2:18-
CV-633, 2020 WL 1329981 at *6 (M.D. Fla. Mar. 23, 2020) (citing Griffin v. Comm’r of Soc. Sec.,
560 F. App’x 837, 842 (11th Cir. 2014)). Here, the ALJ found that prior to December 30, 2020,
Plaintiff “did not have an impairment or combination of impairments that [met] or medically
equal[ed] the severity of one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1.” (Tr. 15). Additionally, in determining Plaintiff’s RFC, the ALJ considered the
“entire record” and “all symptoms and the extent to which these symptoms c[ould] reasonably be
accepted as consistent with the objective medical evidence and other evidence, based on the

requirements of 20 CFR 404.1529 and 416.929 and SSR 16-3p,” and the ALJ “also considered the
medical opinion(s) and prior administrative medical finding(s) in accordance with the
requirements of 20 CFR 404.1520c and 416.920c.” (Tr. 15). These statements sufficiently
demonstrate that the ALJ considered all of the necessary evidence. See Tuggerson-Brown, 572 F.
App’x at 951-52.
An RFC determination is an assessment of what a claimant is still able to do despite the
claimant’s impairments and is based on all relevant medical and other evidence. Phillips, 357 F.3d
at 1238-39; Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.1997); 20 C.F.R. §§ 404.1545(a)(1),
416.945(a)(1) (“Your residual functional capacity is the most you can still do despite your
limitations.”). “[T]he task of determining a claimant’s [RFC] and ability to work rests with the
[ALJ], not a doctor.” Moore v. Soc. Sec. Admin., Comm’r, 649 F. App’x 941, 945 (11th Cir. 2016);
Hollingsworth v. Comm’r of Soc. Sec., 846 F. App’x 749, 753 (11th Cir. 2021) (“A claimant’s
RFC is a matter reserved for the ALJ’s determination, and while a physician’s opinion

on the matter is considered, it is not dispositive.”); Bouie v. Astrue, 226 F. App’x 892, 894
(11th Cir. 2007) (“An ALJ may reject the opinion of any physician when the record supports a
contrary conclusion. The resolution of conflicting evidence is the function of the ALJ, not the
Court.”) (citation omitted); Frank v. Comm’r of Soc. Sec., No. 2:20-CV-962, 2022 WL 598036 at
*8 (M.D. Fla. Feb. 10, 2022), report and recommendation adopted, No. 2:20-CV-962,
2022 WL 596833 (M.D. Fla. Feb. 25, 2022) (“[T]here is no requirement that an ALJ base the RFC
finding on a medical source’s opinion.”); Tolbert v. Kijakazi, No. 3:21-CV-33, 2022 WL 4591646
at *2 (M.D. Ala. Sept. 29, 2022) (“An ALJ may ‘distill a claimant’s RFC from an amalgamation
of the record as a whole, without requiring a specific medical opinion to articulate a specific
functional limitation.’”) (citation omitted). “It is ‘solely the province of the [Commissioner]’ to

resolve conflicts in the evidence and assess the credibility of witnesses.” Lacina v. Comm’r, Soc.
Sec. Admin., 606 F. App’x 520, 525 (11th Cir. 2015) (citation omitted).
“To find that an ALJ’s RFC determination is supported by substantial evidence, it must be
shown that the ALJ has ‘provide[d] a sufficient rationale to link’ substantial record evidence ‘to
the legal conclusions reached.’” Eaton v. Colvin, 180 F. Supp. 3d 1037, 1055 (S.D. Ala. 2016)
(citations omitted). Although an RFC determination must be supported by substantial evidence,
the ALJ “is not required to specifically address every aspect of an opinion or every piece of
evidence in the record” in order for the determination to be affirmed. Coley v. Comm’r of
Soc. Sec., 771 F. App’x 913, 917 (11th Cir. 2019); Dyer v. Barnhart, 395 F.3d 1206, 1211
(11th Cir. 2005) (“[T]here is no rigid requirement that the ALJ specifically refer to every piece of
evidence in his decision, so long as the ALJ’s decision ... is not a broad rejection which is ‘not
enough to enable [the district court ... ] to conclude that [the ALJ] considered [the claimant’s]
medical condition as a whole.’”) (citation omitted). Moreover, “to find that the ALJ’s RFC

assessment is supported by substantial evidence, it is not necessary for the ALJ’s assessment to be
supported by the assessment of an examining or treating physician.” Smoke v. Kijakazi,
No. CV 21-0206, 2022 WL 721532 at *4 (S.D. Ala. Mar. 9, 2022).
In assessing Plaintiff’s RFC, the ALJ noted that Plaintiff had not been seen by a physician
in 15 years as of January 23, 2020 and that, although Plaintiff was diagnosed with hypertension
and diabetes with reports of vision issues, he had received “no diagnoses for those vision issues.”
(Tr. 14, 269-70). Plaintiff cites to his hearing testimony as establishing his vision problems and
worsening vision throughout 2020. (Doc. 5 at pp. 5-6). The ALJ expressly considered Plaintiff’s
subjective complaints in determining his RFC, summarizing Plaintiff’s testimony as follows:
At the hearing, the claimant testified that in early 2020, he woke with a blood spot
on his eye, and could not even see light due to complications due to diabetes. He
acclimated around the home because he could not go to the physician. He was
caring for his disabled mother and had no funds to see the physician. He couldn’t
drive. He had a haze over one eye and couldn’t see light from another. He went to
a physician in January of 2020 for an examination and was told that his diabetes
needed to be in control to help his eyes. He had no income to do more, his friend
would help him by leading him around, but his eyes were getting worse. By June
he could no longer wait, he just had to deal with it despite the cost, and he alleges
that he was told that he can’t see anything and nothing can be done due to the
maturity of the cataracts and that they are getting worse. He indicated that the blood
was worsening in the eye between January and June, to the extent that he couldn’t
function. So, this was the end of February and early March.
. . .
At the hearing, the claimant testified that the August 17, 2020, right eye surgery is
when the left eye was the lesser of two, but they were both still not in good shape.
He said that the physicians were attempting to save the left eye, rebuild with lens,
and with retinal surgery. The gas took two weeks to dissipate, with six trips to
Birmingham getting ready for the next one. There were 72 hours, 10-12 trips
between two surgeries. He testified that they then scheduled the second one to fix
the retina in that eye and he had comprehensive after care with trips for care, with
no less than 10 injections in eyes. They were still leaking, with continued eye
problems. The physicians then watched closely, and he came back in two or three
weeks off and on for eight months in between that and he also had to see a Medicaid
doctor. He said that he was taking shots because he still could not see or drive, and
he had spots on his eyes, and cataracts in left eye. He said he had to have a friend
take care of him that whole time.

(Tr. 15-16, 17, 45-52).
The ALJ explained that “[a]fter careful consideration of the evidence” Plaintiff’s
“medically determinable impairments could reasonably be expected to cause [his] alleged
symptoms,” but that Plaintiff’s statements “concerning the intensity, persistence, and limiting
effects of [his] symptoms [were] not fully supported prior to December 30, 2020.” (Tr. 18). In
considering Plaintiff’s subjective statements regarding his vision problems in conjunction with
the record as a whole when fashioning Plaintiff’s RFC, the ALJ found that “he could never climb
ladders, ropes or scaffolds due to his vision issues and body habitus.” (Tr. 20). The ALJ added
that Plaintiff “was limited to oral instructions and that near and far acuity [were] not present, and
depth perception and accommodation would not be present.” (Tr. 20). The ALJ explained, “I
simply considered [Plaintiff’s] total conditions and gave him the benefit of the doubt.” (Tr. 20).
Plaintiff fails to allege or identify any additional limitations that the ALJ should have included in
the RFC based upon his vision impairments.
Moreover, a review of the record reflects that the ALJ thoroughly considered the medical
record as a whole in assessing Plaintiff’s vision impairments when fashioning Plaintiff’s RFC.
The ALJ cited treating records from June 2020 that showed that Plaintiff had “loss of vision OS
(left eye), vitreous hemorrhage, and traction retinal detachment OS greater than OD (right eye).”
(Tr. 16, 275). Notes from June 2020 indicated that Plaintiff had stable vision in the right eye but
worsened vision in the left eye, and examination revealed that his visual acuity of his right eye was
20/60 cc and visual acuity of his left eye was “count fingers at 1 ft.” (Tr. 16, 275, 278). Plaintiff
was diagnosed with left vitreous hemorrhage and traction retinal detachment, dense vitreous
hemorrhage with poor view of the retina, right early traction retinal detachment approaching
fovea,6 severe proliferative diabetic retinopathy of both eyes, and posterior subcapsular cataract

(PSC) of the left eye and cataracts of both eyes. (Tr. 16, 279).
The ALJ noted that records from July 27, 2020 showed that Plaintiff was seen for loss of
vision that was worse in the left eye than in the right. (Tr. 16, 369). The ALJ also noted that
Plaintiff reported that he could no longer read for four months in the right eye and eight months in
the left, that he was sensitive to light and glare, and that he had floaters. (Tr. 16, 369). Fundus
examination showed “no view” for the left eye and that the right eye had abnormal optic nerve
(NVD), macula (hemorrhages), vessels (fibrovascular elements along the inferior temporal arcade
and the superior temporal arcade), and vitreous (old and new hemorrhage mainly inferiorly).
(Tr. 16, 371). Plaintiff’s ultrasound revealed moderate to marked vitreous opacity greatest
inferiorly with inferior tractional retinal detachment of his left eye. (Tr. 16-17, 372). The ALJ

commented that the July records showed that Plaintiff had cortical cataracts of both eyes,
proliferative diabetic retinopathy, traction retinal detachment of the left eye, vitreous hemorrhage
of both eyes, and that his right eye visual acuity was 20/200 and his left eye visual acuity was hand
motions. (Tr. 17, 372).
The ALJ noted that August 17, 2020 records revealed that Plaintiff had surgery for his right
eye, which involved a cataract extraction with insertion of intraocular lens, along with a 25-guage
pars plana vitrectomy, traction retinal detachment repair, endolaser panretinal photocoagulation,

6 Fovea is the “depression in the very center of the macula where eyesight is sharpest.”
https://www.aao.org/eye-health/anatomy/fovea (last viewed February 14, 2024).
fluid-air exchange, and intravitreal Avastin. (Tr. 17, 400-01). The ALJ also noted that on
September 17, 2020, upon follow up from surgery, medical records showed that Plaintiff was doing
well with minor pain and aching and some reports of flashes of light and floaters and that his left
eye was reported as stable. (Tr. 17, 380). Tests showed that Plaintiff’s right eye distance and

intermediate vision was 20/60 -1. (Tr. 17, 382). The ALJ noted that optical coherence tomography
(“OCT”) revealed subretinal fluid of the right eye but that the eye was improved from the
preoperative status. (Tr. 17, 384).
On September 17, 2020, Plaintiff had surgery on his left eye for proliferative diabetic
retinopathy with vitreous hemorrhage and tractional retinal detachment and visually significant
cataract. (Tr. 17, 387). On the same day of his left eye procedure, in postoperative notes, Plaintiff
indicated that his vision was “better than it has been in 8 months,” though it was still hand motion
(“HM”). (Tr. 17, 459). The ALJ noted that records from November 3, 2020 showed that Plaintiff’s
distance and intermediate vision, uncorrected, was 20/40 in the right eye and 20/25 in the left eye.
(Tr. 18, 433). Treating notes indicated that Plaintiff was “[d]oing excellent” with his visual acuity

20/25 from HM on the left and 20/40 from 20/200 on the right. (Tr. 18, 436). The ALJ cited
December 8, 2020 records that showed on follow up examination that Plaintiff’s distance visual
acuity was 20/30 -2 in both eyes, that confrontational fields were full to finger counting in both
eyes, and posterior chamber intraocular lens (“PCIOL”) was in good position for both eyes.
(Tr. 18, 425-26). The ALJ noted that treatment notes indicated that Plaintiff was “doing excellent”
with visual acuity of 20/30 from HM, superior portion of optic anteriorly rotated on the left, with
air fill gone, and mild worsening of intra-retinal fluid (“IRF”) but would monitor as vision was
“still great.” (Tr. 18, 427-28). The ALJ further noted that Plaintiff’s right eye had subretinal fluid
but was improved from preoperative status and stable. (Tr. 18, 428).
The ALJ additionally considered the December 15, 2020 consultative examination with
Dr. Ammar Aldaher, which showed that Plaintiff’s visual acuity without glasses was 20/100 in the
right eye and 20/200 in the left. (Tr. 18, 412). Dr. Aldaher noted that Plaintiff could not identify
colors and diagnosed Plaintiff with retinopathy with vision loss, hypertension, and diabetes.

(Tr. 18, 412-13). Dr. Aldahar opined that Plaintiff could do work related activities such as sitting,
standing, walking, lifting, carrying, and handling objects. (Tr. 18, 413).
The ALJ next discussed the December 30, 2020 consultative examination by
Dr. Douglas Clark, who found that Plaintiff’s best corrected vision was 20/200 in the right eye and
that in his left eye he only had HM, meaning “the ability to distinguish whether or not there is
movement of the examiner’s hand directly in front of the patient’s eyes.” (Tr. 18, 480). The ALJ
noted that tension was 20 for both eyes and that fundus examination showed severe diabetic
retinopathy, laser scarring, tractional retinal detachment scarring, and hemorrhages. (Tr. 18, 481).
The ALJ further observed:
As Dr. Clark noted on the consultative examination report, the claimant’s vision
without glasses on the right was 20/200- and with best correction 20/200+ for
distance, 20/800 without glasses for reading or close work, and with best correction
20/400 (Exhibit 10F). The left eye was only measured at HM, which means hand
motion, or the ability to distinguish whether or not there is movement of the
examiner’s hand directly in front of the patient’s eyes. Thus, the better eye, the
right eye, was 20/200 as required for statutory blindness7 under 2.02, and even
20/400 with best correction for close work or reading.

(Tr. 18, 480-81).

7 The regulations define statutory blindness as follows:

[C]entral visual acuity of 20/200 or less in the better eye with the use of a correcting
lens. An eye which has a limitation in the field of vision so that the widest diameter
of the visual field subtends an angle no greater than 20 degrees is considered to
have a central visual acuity of 20/200 or less.

20 C.F.R. §§ 404.1581, 416.981.
The ALJ also considered the prior administrative medical finding of State agency medical
consultant Gary Spitz, M.D., who reviewed the evidence of record in January 2021. (Tr. 20-21,
106-07). Finding Dr. Spitz’s opinion persuasive, the ALJ stated:
Dr. Spitz explains it best (Exhibit 5A/13-14). His special senses review notes that
the claimant alleges a visual impairment, among other conditions. Alleged onset
date was 01/15/2018 while established onset date is 12/30/2020. DDS found listing
2.03A was met. Medical evidence in the file shows that the claimant has diabetic
retinopathy. Medical evidence in the file shows that the claimant is status post laser
photocoagulation for diabetic retinopathy. A consultative examination on
December 30, 2020, with Dr. Clark shows best corrected visual acuity 20/200+ OD
HM OS. The visual acuity reported is consistent with the pathology described.
The visual fields performed are Humphrey 24-2 and acceptable for adjudication.
The reliability indices shown thereon, specifically fixation losses, false positives,
and false negatives, are indicative of good reliability per Dr. Spitz. The fields
subtend less than 20 degrees around the point of fixation in each eye. Listing 2.03A
is met and the claimant is statutorily blind. However, as to onset, Dr. Spitz notes
that the medical examination on November 3, 2020, shows acuity 20/40 OD 20/25
OS. Thus, the onset established by DDS is reasonable, and based on current
severity, medical evidence in the file, as well as the natural history of the underlying
disease process. Extant medical evidence does not support an earlier onset per
Dr. Spitz. He notes that that diabetic retinopathy is a progressive and not a static
disease. In fact, diabetic retinopathy, and its associated visual loss, can progress
very rapidly. Thus, it is not reasonable to infer that the current severity of
claimant’s visual loss accurately reflects claimant's ocular status earlier in 2020.
Rather it would be reasonable to infer that claimant’s visual acuity and fields were
considerably better at that time. Indeed, the treating source medical examination
heretofore cited shows that to be the situation herein.

(Tr. 20-21, 106).
The ALJ stated that “[t]here was no evidence of statutory blindness or meeting/equaling
any listing under 2.00 prior to [December 30, 2020].” (Tr. 18). The ALJ concluded:
In sum, notwithstanding his allegations of pain, discomfort and physical
limitations, treatment records and examinations do not provide evidence that would
reasonably support a finding that the claimant is as physically limited as alleged,
or, for that matter, that he experiences the severity of symptoms as alleged prior to
the established onset date.
. . .
Prior to the established onset date, in addition to the limitations already discussed,
I find that the claimant was limited to oral instructions, near and far acuity were not
present, and depth perception and accommodation were not be present. This takes
his testimony and the overall record into consideration. There is no further
evidence justifying restrictions greater than what is set forth in the residual
functional capacity finding above.

(Tr. 21).
Here, the ALJ’s finding of hypertension, type II diabetes mellitus, and obesity as severe
impairments prior to December 30, 2020 was enough to satisfy the requirement of step two.
Jamison, 814 F.2d at 588. The ALJ’s decision includes a thorough discussion of Plaintiff’s alleged
impairments, including Plaintiff’s diabetic retinopathy, vision loss, retinal detachment, and
cataracts. The ALJ’s decision reflects that the ALJ properly considered all of Plaintiff’s
impairments, whether severe or not, when considering the evidence of record. Accordingly, based
upon the entire record, the court concludes that the ALJ did not err when describing Plaintiff’s
alleged impairments at step two and that the ALJ adequately considered Plaintiff’s diabetic
retinopathy, vision loss, retinal detachment, and cataracts in formulating Plaintiff’s RFC prior to
December 30, 2020. The court finds that the ALJ’s decision is supported by substantial evidence.
V. Conclusion
After carefully and independently reviewing the record, and for the reasons stated above,
the court concludes as follows:
• that Plaintiff’s motion for summary judgment (Doc. 5) is due to be DENIED;
• that the Commissioner’s motion for summary judgment (Doc. 6) is due to be
GRANTED; and
• that the Commissioner’s decision is due to be AFFIRMED.
A separate judgment will issue.
DONE this the 16th day of February 2024.
/| Ar
CHAD W. BRYAN
UNITED STATES MAGISTRATE JUDGE

18

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9988597. Public record. Not legal advice.