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Ratsamy v. Colvin

United States District Court, Third Circuit

August 19, 2013

PHETMANY RATSAMY
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security [1]

MEMORANDUM

O’NEILL, J.

Plaintiff Phetmany Ratsamy seeks review of the Social Security Commissioner’s decision denying her claim for supplemental social security income benefits under Title XVI of the Social Security Act. 42 U.S.C. §§ 1381-1383. I referred plaintiff’s case to United States Magistrate Elizabeth T. Hey for a Report and Recommendation[2] and on May 30, 2013, Judge Hey recommended that the final decision of the Commissioner be affirmed. Dkt. No. 10. Plaintiff filed timely objections to the Report and Recommendation, Dkt. No. 11, to which defendant filed a response, Dkt. No. 11, and plaintiff filed a reply, Dkt. No. 12. For the reasons that follow I will adopt Judge Hey’s Report and Recommendation as modified by this opinion, overrule plaintiff’s objections and affirm the final decision of the Commissioner.

STANDARD OF REVIEW

The background of this case and the applicable standard of review are set forth in detail in the Report and Recommendation and will be recited here only as necessary to address the issues presented by plaintiff’s objections. In assessing plaintiff’s objections, I must evaluate de novo those portions of the Report and Recommendation to which objection has been made.[3] 28 U.S.C. § 636(b)(1)(C). I may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id.; see also Brophy v. Halter, 153 F.Supp.2d 667, 669 (E.D. Pa. 2001).

Plaintiff’s claim for social security disability benefits was denied on September 22, 2010. See Dkt. No. 10 at 4. The issue to be addressed on her appeal from a denial of benefits is whether the decisions of the administrative law judge are supported by substantial evidence. Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir. 1994). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (citation and internal quotation marks omitted). “It is less than a preponderance of the evidence but more than a mere scintilla.” Jesurum v. Sec’y of U.S. Dep’t of Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995). “Overall, the substantial evidence standard is deferential and includes deference to inferences drawn from the facts if they, in turn, are supported by substantial evidence.” Schaudeck v. Comm’r of Soc. Sec. Admin., 181 F.3d 429, 433 (3d Cir. 1999). Where the ALJ’s factual findings are supported by substantial evidence, I am bound by them even if I would have reached different conclusions. See Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001). A reviewing court may not “[w]eigh the evidence or substitute [its own] conclusions for those of the fact-finder.” Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005).

DISCUSSION

I. Plaintiff’s Vision

A. Severe Impairment

In her brief in support of her request for review of the Commissioner’s decision, plaintiff argued that her “[u]nilateral blindness is a significant limitation of vision as a matter of simple common sense.” Dkt. No. 6 at 5. Plaintiff objects that the Report and Recommendation is in error because it agrees with the Administrative Law Judge’s conclusion that plaintiff’s impaired vision does not constitute a severe impairment. Dkt. No. 11 at 1. Judge Hey’s Report and Recommendation finds that there was “substantial evidence for the ALJ’s conclusion that Plaintiff’s right eye impairment is not severe.” Dkt. No. 10 at 15-16. I agree with Judge Hey’s conclusion, but apply modified reasoning in reaching this result.

The ALJ found that plaintiff’s vision impairment did not meet the requirements set forth in the second step of the sequential evaluation of plaintiff’s work and medical history that was required to determine her eligibility for benefits.[4] See 20 C.F.R. § 416.920. Plaintiff bears the burden of proof for step two, Sykes v. Apfel, 228 F.3d 259, 263 (3d Cir. 2000), which requires her to prove that she has a “severe impairment . . . or combination of impairments which significantly limits her physical or mental ability to do basic work activities.” 20 C.F.R. § 416.920(c). “[B]asic work activities” are “the abilities and aptitudes necessary to do most jobs, ” including the capacity for seeing. 20 C.F.R. § 416.921(b). “An impairment or combination of impairments is not severe if it does not significantly limit [plaintiff’s] physical or mental ability to do basic work activities.” 20 C.F.R. § 416.921(a).

Considering whether plaintiff’s vision impairment was sufficient to meet the requirements of the second step analysis, the ALJ noted a form submitted by Dr. Kahn Che, plaintiff’s primary care physician, on which Dr. Che noted that plaintiff’s corrected vision was 20/20 in both eyes. Tr. 140. Dr. Che’s note also reported that plaintiff did not show “clinical signs of visual field restrictions.” Id. at 217. In her report and recommendation, Judge Hay found that “Dr. Che’s most recent assessment of Plaintiff’s vision with correction provides substantial evidence for the ALJ’s conclusion that Plaintiff’s right eye impairment is not severe.” Dkt. No. 10 at 15-16. Standing alone, I find that Dr. Che’s assessment of plaintiff’s vision does not constitute substantial evidence for his finding that her vision impairment was not severe. However, viewing Dr. Che’s assessment together with the other record evidence related to plaintiff’s vision, there is substantial evidence to support the ALJ’s conclusion that plaintiff did not meet her burden to show that her vision impairment was a “severe impairment.”

When she was asked at her administrative hearing about Dr. Che’s note that she had perfect vision in both eyes, plaintiff responded that her right eye was “blurry” and that her left eye was “good, ” but that if she turned off the lights she could not see. Tr. 325. Asked whether she had glasses, she responded “Yes. Reading glasses.” Id. She had nothing further to say about her vision. Id. The ALJ’s decision also notes that that when plaintiff was consultatively examined by Dr. Karen J. Nichols in September 2003, plaintiff’s “visual acuity was 20/50 on the left and none on the right without glasses.” Id. at 139. Similarly, although not specifically mentioned in the ALJ’s decision, Dr. Goldstein opined that plaintiff could “read with the left eye but not with the right.” Id. at 83. While Dr. Goldstein indicated that plaintiff should be seen by an ophthalmologist, id. at 85, the only evidence in the record that she visited an eye doctor is plaintiff’s comment at an August 24, 2010 hearing before the ALJ that she “transferred to an eye doctor like you recommended.” Id. at 330. There are no medical records from an eye doctor in evidence. The administrative record clearly establishes that plaintiff’s left eye vision was not severely impaired. And plaintiff provides no citations to the record in support of her assertion that her right eye vision was uncorrectable with glasses.[5]

Further, and importantly, plaintiff “presented no evidence as to how h[er] visual impairment might limit h[er] ability to do any job.” Florence v. Astrue, No. 06-4571, 2008 WL 564871, at *6 (Feb. 29, 2008) (finding that “the ALJ was not required to evaluate [the plaintiff’s impaired vision] at any length as there [was] no evidence that it prevent[ed] Plaintiff from doing any type of substantial gainful activity”). Beyond the comment that she was unable to see when lights were turned off, plaintiff submitted no testimony regarding her vision’s impact on her ability to do basic work activities. See Tr. at 100-115 (transcript of October 2008 administrative hearing); id. at 314-326 (transcript of March 2007 administrative hearing). “[I]t is well settled that disability is not determined merely by the presence of a diagnosed impairment, but by the effect that the impairment has upon the individual's ability to perform substantial gainful activity.” Van Mook v. Astrue, No. 10-876, 2011 WL 3875527, at *2 (W.D. Pa. Aug. 31, 2011), citing, Jones v. Sullivan, 954 F.2d 125, 129 (3d Cir. 1991); see also D’Arrigo v. Barnhart, No. 05-5394, 2006 WL 2520524, at *4 (E.D. Pa. Aug. 23, 2006) (finding the plaintiff “needed more than just evidence of an impairment for it to be considered ‘severe, ’ but rather she also needed evidence of the impairment significantly limiting her ability to do basic work activities). In his decision, the ALJ explained that “[i]n reaching the conclusion that the claimant does not have an impairment or combination of impairments that significantly limits her ability to perform basic work activities, [he had] considered all symptoms and the extent to which these symptoms can be reasonably be accepted as consistent with the objective medical evidence and other evidence . . . .” Tr. 141. Although the ALJ could have been more ...


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