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Barlow v. Commissioner of Social Security

United States District Court, S.D. Ohio, Eastern Division

May 29, 2018

JOHN BARLOW, Plaintiff,

          Judge James L. Graham Magistrate



         Plaintiff, John Barlow (“Plaintiff”), brings this action under 42 U.S.C. § 405(g) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying his applications for disability insurance benefits, period of disability benefits, and supplemental security income benefits. This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's Statement of Errors (ECF No. 10), the Commissioner's Memorandum in Opposition (ECF No. 13), Plaintiff's Reply (ECF No. 14), and the administrative record (ECF No. 9). For the reasons that follow, the undersigned RECOMMENDS that the Court AFFIRM the Commissioner of Social Security's non-disability finding and OVERRULE Plaintiff's Statement of Errors.

         I. BACKGROUND

         Plaintiff protectively filed his applications for period of disability benefits, disability insurance benefits, and supplemental security income benefits on April 30, 2014, and May 1, 2014. (R. at 235-42.) Plaintiff alleges that his disability began on June 30, 2013, due to a blindness, a tumor behind his right eye and alcoholism. (Id.; R. at 262) Plaintiff's applications were denied initially and upon reconsideration. (Id. at 142-48.) After receiving Notices of Reconsideration on October 9, 2014, Plaintiff again appealed the denial of his claims by filing a timely request for a hearing before an administrative law judge. (Id. at 153-66.)

         A hearing was held before Administrative Law Judge Noceeba Southern (“ALJ”) on May 20, 2016. On June 17, 2016, the ALJ issued her decision denying Plaintiff's request for benefits. (R. at 45-66.) Plaintiff timely requested a review of the ALJ's decision by the Appeals Council on August 17, 2016. (Id. at 230-34.) The Appeals Council denied his request for review on June 27, 2017. (Id. at 1-6.) Plaintiff timely filed this action for judicial review on August 25, 2017.

         In his Statement of Errors, Plaintiff raises three issues. First, Plaintiff asserts that the ALJ erred in failing to properly consider the opinions relating to his visual impairments, including the opinions of consultative examiner Dr. Sarah Yoest, O.D. and also the opinions of the state-agency reviewing physicians, Drs. Teresa Cruz, M.D. and Gary Hinzman, M.D. (Pl.'s Statement of Errors 5-8, ECF No. 10.) Second, Plaintiff posits that the ALJ's residual functional capacity (“RFC”) determination did not account for all of his functional limitations, namely, the limitations Drs. Yoest, Cruz, and Hinzman opined that relate to his visual impairments. Specifically, Plaintiff's maintains that the RFC should have included a limitation for “no fine depth perception” and also defined “ordinary work hazards.” (Id. at 8-11.) Finally, Plaintiff asserts that the ALJ's determination that he can perform his past work or other work lacks substantial evidence because the hypothetical question he posed to the vocational expert (“VE”), which mirrored the deficient RFC, failed to account for all of the limitations attributable to his visual impairments. (Id. at 11-12.)

         In her Memorandum in Opposition, the Commissioner points out that although Plaintiff raises three contentions of error, his arguments all focus upon the ALJ's failure to include sufficient limitations to address his visual impairment, specifically, the limitation for “no fine depth perception, ” as well as a definition of “ordinary work hazards.” The Commissioner acknowledges that the ALJ's RFC determination and the hypothetical question posed to the VE both fail to include all of the limitations that the Commissioner appeared to find credible, but submits that her decision is nevertheless supported by substantial evidence because Plaintiff could perform his past work even with the at-issue limitations.

         In his Reply, Plaintiff maintains that the Commissioner “failed to adequately address [his] argument that the ALJ's use of the term ‘low depth acuity in both eyes' in the RFC to describe some of Plaintiff's visual limitations fails to adequately address Plaintiff's lack of depth perception” and also “appears to conflate limitations in the defined categories of near acuity, far acuity and depth perception as described in the [Selected Characteristics of Occupations].” (Pl.'s Reply 1, ECF No. 14.) In addition, Plaintiff emphasizes that it is unclear from the ALJ's use of the phrase “must avoid ordinary work hazards” in the RFC whether she was referring to the environmental conditions listed in the DOT/ Selected Characteristics of Occupations (“SCO”) or to less significant hazards as described in Social Security Rulings 83-14 and 85-15. Plaintiff maintains that remand is required because application of the more expansive definition contained in the Rulings could impact the number of jobs remaining.


         In June 2014, Plaintiff presented to Dr. Yoest for an optometric consultative examination. Following an examination, Dr. Yoest opined that as a result of a toxoplasmosis infection Plaintiff suffered at age four, he had “no fine depth perception (stereopsis).” (R. at 338-39.) She noted that his left eye remained “healthy” and that he had “good vision” with that eye. (R. at 338.)

         One month later, in June 2015, state agency reviewing physician Dr. Cruz reviewed the record and concluded that Plaintiff had “no fine depth perception, ” limited vision in his right eye, and that he retained the capacity to perform “a full range of job duties that [do] not require [him to] work around hazards such as heights and machinery.” (R. at 96-103.) In October 2015, state agency reviewing physician Dr. Hinzman reviewed the record and agreed that Plaintiff had “[n]o fine depth perception” and limited acuity and field of vision in his right eye and concluded that Plaintiff must “[a]void all exposure” to “[h]azards (machinery, heights, etc.), ” adding “[n]o unprotected heights and no commercial driving.” (R. at 124-26.)

         At the hearing, Plaintiff testified that he is unable to work because of his tremors. (R. at 71.) He explained that his tremors have gotten progressively worse. Consistently, Plaintiff's counsel acknowledged that both Plaintiff's tremors and blindness predated his alleged onset date, but that his tremors have become more severe. (R. at 78-79.) Plaintiff confirmed that his right-eye blindness occurred at age four. (R. at 79.)

         The VE asked Plaintiff a number of questions in order to properly classify his past work. Based upon Plaintiff's testimony, the VE identified Plaintiff's past work a general clerk, DOT 209.562-010; and merchandise distributor, DOT 219.367-018, light exertional level but performed at the medium exertional level. The VE testified that a hypothetical individual with Plaintiff's vocational profile and the RFC the ALJ ultimately assessed could perform Plaintiff's past work, as well as other jobs that exist in significant numbers in the national economy. Plaintiff's counsel was afforded the opportunity to cross-examine the VE, but declined to do so. (R. at 81-91.)


         The ALJ issued her decision on June 16, 2016, finding that Plaintiff had not been under a disability within the meaning of the Social Security Act since June 30, 2013, the alleged onset date, through his date last insured. (R. at 50.) At step two of the sequential evaluation process, [1] the ALJ concluded that Plaintiff had the following severe impairments: remote loss of vision in his right eye status post childhood toxoplasmosis, essential tremors of the hands, affective disorder, and alcohol use disorder in reported remission. (Id.) The ALJ concluded that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ explained that Plaintiff's vision did not meet the vision listings because his records “revealed good vision with best corrected vision in [his] better left eye of 20/15 and normal fields in that better eye.” (Id. at 51.) At step four of the sequential process, the ALJ set forth Plaintiff's RFC as follows:

[T]he claimant has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except that he cannot climb ladders, ropes, and scaffolds and must avoid ordinary work hazards due to low visual acuity in his right eye and low depth ...

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