Whittaker v. Commissioner of Social Security

• Decision Date: 11 February 2004
• Docket Number: No. 6:00-CV-0062(GLS).,6:00-CV-0062(GLS).
• Parties: Dennis F. WHITTAKER, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
• Court: U.S. District Court — Northern District of New York

307 F.Supp.2d 430

Dennis F. WHITTAKER, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

No. 6:00-CV-0062(GLS).

United States District Court, N.D. New York.

February 11, 2004.

COPYRIGHT MATERIAL OMITTED

Jeffrey Freedman Law Firm (Kevin Bambury, Esq., of Counsel), Rochester, NY, for Plaintiff.

Glenn T. Suddaby, United States Attorney (William H. Pease, Assistant U.S. Attorney, of Counsel), Syracuse, NY, for Defendant.

DECISION AND ORDER

SHARPE, District Judge.

I. INTRODUCTION

Dennis Whittaker brings this action to contest the denial of benefits by the Commissioner of Social Security. He has been disabled since April 21, 1995, due to glaucoma and diplopia¹. He met the special insured status earnings requirements of the Act for purposes of establishing entitlement to disability insurance benefits on the alleged date of onset and continued to meet those requirements through December 2001. Having reviewed the entire record, this court finds that the Commissioner's decision must be affirmed since it was based on substantial evidence.

II. PROCEDURAL HISTORY

Whittaker initially applied for disability insurance benefits on November 9, 1995, alleging disability as of August 21, 1995. His application was denied initially and on reconsideration. Whittaker did not appeal the reconsideration decision. Subsequently, on September 25, 1996, Whittaker reapplied for disability insurance benefits alleging disability as of April 25, 1995. The application was denied initially, and again on reconsideration. Whittaker then requested a hearing before an Administrative Law Judge which was subsequently held on April 1, 1998, before Thomas Zolezzi. In a decision dated June 25, 1998, the ALJ found that Whittaker did not have a disability which precluded him from working. The decision of the ALJ became the final decision of the Commissioner when the Appeals Council denied his request for review.

On January 10, 2000, Whittaker brought this action pursuant to 42 U.S.C. § 405(g) seeking review of the Commissioner's final determination. On April 18, 2000, the Commissioner filed an answer and a certified administrative transcript. On June 1, 2000, Whittaker filed a brief and on July 18, 2000, the Commissioner filed a response.

III. CONTENTIONS

Whittaker contends that the Commissioner failed to: (1) introduce sufficient evidence to satisfy its Step 5 burden of proof; and, (2) incorrectly denied his request to reopen his prior application. The Commissioner argues that substantial evidence in the record supports the finding of the ALJ and his decision should be affirmed

IV. FACTS²

Whittaker was born on May 25, 1942. He received a Master's Degree in civil engineering in 1964. He was last employed as an environmental engineer for IBM. His previous job required him to sit for five hours per day, walk for one hour per day, bend occasionally and lift twenty pounds occasionally. His job also required "a lot of" reading and computer work. Whittaker complained of poor near vision in his right eye and difficulty fusing or stabilizing images.

Whittaker claimed that the ALJ who sat ten to twelve feet from him at the hearing, was a blur to him in his right eye. He could not read with his right eye. He usually rested his eyes for 30 minutes per day around noontime. He testified that he got headaches if he did not pace himself. Whittaker indicated that the intraocular pressure³ ("IOP") in his right eye was 5. The IOP in his left eye was 12 or 13. The pressure in his left eye fluctuated, rising to 20 or 25 every six months, which required him to change medication. The medication allegedly made him tired. His corrected vision varied from 20/60 to 20/80 in his right eye, and was 20/40 in his left eye.

Whittaker performed "normal" activities of daily living, but had difficulty reading labels at the grocery store. His daily activities included cutting and splitting wood, restoring cemeteries, household chores, training his dog to herd sheep and ducks, and visiting relatives. He lived by himself and cooked his own meals. He balanced his checkbook on a computer for 20 to 30 minutes continuously, and then needed a one-hour break. He testified that he could read for ten minutes, but then needed a thirty minute break because he would lose focus and his eyes would hurt. Whittaker used a magnifying glass to read newspaper articles. He testified that he could work with a jigsaw puzzle, but he could not thread a needle. He did not have any difficulty watching television, except for reading subtitles.

Whittaker drove locally and limited his night time driving. He testified that he had no difficulty standing or walking. However, Whittaker claimed that he could not sit for "too long" due to a bad back. He testified that he could lift fifty pounds occasionally and twenty pounds frequently. He had no difficulty bending, kneeling or stooping down.

A. Medical Evidence Prior to his Onset Date of April 21, 1995

In 1989, Gary Williams, Whittaker's optometrist since 1974, observed that his IOP began to fluctuate. In January of 1992, his IOP increased to 31 in his left eye and 32 in his right eye. He was referred to Dr. Steven Hudock, who commenced treatment for glaucoma. By February of 1993, Whittaker's IOP had dropped to 11 and 13 in his left and right eye, respectively. However, Whittaker then developed allergic reactions to the glaucoma medication. In September of 1993, his glaucoma care was transferred to Dr. Maura Santangelo, an ophthalmologist. Since Whittaker's IOP could no longer be controlled with medical therapy, Dr. Santangelo performed a trabeculectomy⁴ on his right eye on October 19, 1993. This produced a dramatic reduction in pressure, a decrease of approximately three diopters in myopia,⁵ and a hypotensive maculopathy.⁶ On February 28, 1994, Dr. Santangelo surgically revised the filtering bleb in his right eye. The increased IOP partially resolved the maculopathy, but he had three diopters less myopia in his right eye than his left. This produced significant aniseikonia⁷. In June of 1994, Whittaker developed hyperphoria⁸ in his right eye.

B. Summary of Medical Evidence During the Relevant Period

On April 27, 1995, a magnetic resonance scan of Whittaker's brain, orbits, and visual pathway was unremarkable. On May 26, 1995, Dr. J. Louis Pecora, an ophthalmologist, examined him. Whittaker indicated that he had vision difficulty since the trabeculectomy. On examination, his best vision was 20/20 in the right eye, and 20/15 in the left eye. The pupils responded normally to light. The IOP was 8 in the right eye and 24 in the left eye. Dr. Pecora's impression was retinal fold in his right eye, primary open angle glaucoma in both eyes, and status post right eye trabeculectomy.

On June 2, 1995, Whittaker saw Dr. William Delaney for an evaluation of the retinal fold. Whittaker complained of double vision and headaches. His chief complaint was that he could not maintain focus. He related that he could get single vision with considerable effort, but it was very tiring. He used ocupress and lopidine twice per day, respectively, in his left eye.

On examination, Dr. Delaney found that Whittaker's best corrected vision was 20/30 in the right eye and 20/20 in the left eye. An external exam revealed right over left hypertropia, worse in left gaze and on right head tilt. Whittaker's visual field was full in the right eye with central distortion, and full in the left eye with no defect noted. Dr. Delaney's impression was anisometropia⁹ chloral folds in the right eye, open angle glaucoma, status post filtering surgery in the righ4 eye, spurious hyperphoria and/or superior oblique palsy in the right eye, and segmental optic atrophy of the right eye. He did not recommend any therapy to treat the retinal fold. Dr. Delaney recommended consultation with an ocular muscle specialist for his difficulty fusing images. Finally, Dr. Delaney concluded that Whittaker was seeing "well" with both eyes and had difficulty fusing the images.

On August 24, 1995, Dr. Walter Merriam conducted an evaluation. Whittaker complained of double vision in his right eye. Whittaker's vison was 20/40 in his right eye and 20/20 in his left. He had right hyperphoria of 2 diopters. He had very poor fusion movements. Dr. Merriam's impression was metamorphopsia¹⁰ of the right eye. He recommended blurring the right eye so that he would begin to use his left eye predominantly.

On November 28, 1995, Dr. Williams re-evaluated Whittaker. His best corrected distant vision was 20/30 in his right eye and 20/20 in his left. The IOP was 8 in the right eye and 19 in the left. Dr. Williams diagnosed glaucoma/metamorphopsia in the right eye, and glaucoma in the left eye.

On January 8, 1996, Dr. Santangelo completed a report regarding Whittatker's condition. His symptoms during his last visit included distortion of central vison of the right eye. His corrected distant vision was 20/60 in his right eye and 20/20 in the left. Dr. Santangelo diagnosed chronic open angle glaucoma. Dr. Santangelo opined that he had no limitation in his ability to lift, carry, stand, walk, sit, push, or pull. She noted that his visual distortion in the right eye was due to low pressure following glaucoma surgery. The nature of the distortion interfered with his ability to do close work, such as reading.

On February 6, 1996, Whittaker was evaluated by Optometrist Jerome Sherman at the request of Dr. Williams. Whittaker was concerned about images in his right eye which moved up and down, and blurred vision by the presence of a wave-like heat mirage. Dr. Sherman found that his corrected visual acuity was 20/40 in his right eye and 20/20 in his left. The IOP was 7.5 in his right eye and 18 in his left. Visual field testing of his right eye revealed only minor abnormalities. Corneal topography of the right eye was unremarkable. Dr. Sherman concluded that his examination yielded little of substance to the management of his case and...