United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
E. Cox, United States Magistrate Judge.
Charah C. appeals the decision of the Commissioner
of the Social Security Administration
(“Commissioner”) denying his disability benefits.
Plaintiff has filed Plaintiff's Brief [dkt. 19], which
the Court has construed as a motion for summary judgment. The
Commissioner has filed a cross-motion for summary judgment
[dkt. 26]. As detailed below, the Court grants the
Commissioner's motion for summary judgment [dkt. 26] and
denies the Plaintiff's motion for summary judgment [dkt.
March 9, 2015, Plaintiff applied for Disability Insurance
Benefits (“DIB”) under Title II of the Social
Security Act, 42 U.S.C. §§ 416(i), 423(d), alleging
a disability onset date of February 15, 2015. [Administrative
Record (“R.”) 20, 148.] Plaintiff cited the
following conditions as the basis of his claim: blindness in
the right eye and visual disturbance in the left. [R. 124.]
He also noted that he had a colostomy bag, the result of a
perirectal abscess, though he did not list this as a
disability basis. [R. 102-110, 124, 162.]
time of Plaintiff's DIB application, Plaintiff was
receiving Supplemental Security Income (“SSI”)
benefits under Title XVI of the Social Security Act, 42
U.S.C. § 1382, in accordance with Administrative Law
Judge (“ALJ”) Shirley Moscow Michaelson's
December 15, 2009 decision, finding him disabled. [R. 94-100,
160, 223.] ALJ Michaelson concluded Plaintiff's visual
impairment met the requirements of Listing 2.03: Contraction
of the Visual Field in the Better Eye. 20 C.F.R. Pt. 404,
Subpt. P, App. 1, § 2.03. Plaintiff was “legally
blind, ” lacking central vision in his right eye
(20/200 with pinhole vision) and sufficient visual acuity in
the “better” eye, the left (20/80 at best, also
with pinhole vision). Id.
19, 2015, the Social Security Administration
(“SSA”) determined that Plaintiff was no longer
disabled under the Social Security Act, namely because his
left eye had improved. [R. 102-109, 120-23.] On July 29,
2015, Plaintiff completed a request for reconsideration with
the SSA. [R. 125-26.] On August 21, 2015, the SSA issued a
notice to Plaintiff maintaining its denial of his claim. [R.
127.] The notice indicated that the initial and additional
records were reviewed by a physician and disability examiner
in the State agency. Id. The reviewers found that
Plaintiff's conditions-his right eye's blindness,
left eye's visual disturbance, as well as his perirectal
abscess and colostomy bag-prevented him from doing some work but
did not exclude him working altogether. Id.
his DIB applications were denied initially and on
reconsideration, Plaintiff requested an administrative
hearing. [R. 110, 119, 131-32.] In January 2017, Plaintiff
appeared pro se, having waived his right to
representation, at a hearing before ALJ Bonny S. Barezky. [R.
71-93.] During the hearing, Plaintiff and a vocational expert
(“VE”) Brian L. Harmon testified. Id. On
May 24, 2017, the ALJ determined that Plaintiff was not
disabled under the Act. [R. 20-28.]
8, 2017, Plaintiff, still pro se, submitted his
request for review of the ALJ's decision to the Appeals
Council. [R. 144.] A month later, he retained counsel. [R.
10-12.] On or about September 8, 2017 Counsel supplemented
Plaintiff's request for review. [R. 223-34.] In his
supplementary letter to the Appeals Council, Plaintiff's
counsel contended ALJ Barezky's decision was “not
logical” and failed to “reflect a properly
developed record, ” establishing Plaintiff as disabled.
Additionally, counsel asserted specifically, “[t]he
entire basis of his disability is blindness.” [R. 223.]
April 10, 2018, after a review of the ALJ's decision, the
Appeals Council denied Plaintiff's Request for Review of
ALJ Barezky's decision. [R. 1-3.] Thus, the Decision of
the Appeals Council is the final decision of the
Commissioner. Plaintiff filed an action in this Court on May
8, 2018, seeking review of the Commissioner's decision.
Relevant Medical Background
born in 1970, was 44 years old on his alleged disability
onset date. [R. 148-49.] Plaintiff's relevant medical
conditions are his macular degeneration of the right eye and
limited visual acuity of the left eye, referenced in the
first part of this section, as well as his perirectal abscess
and colostomy, referenced in the second part of this section.
2008, Plaintiff sustained blunt force trauma to his right eye
when he was struck by a pistol. [R. 99.] Plaintiff underwent
consultative evaluations in July and September of 2008, as
well in January of 2009 with Dr. Tracy Matchinski, O.D. [R.
99.] With respect to the right eye, the results were
consistent, and the physicians reached a consensus.
Id. Plaintiff had significant vision loss that left
him legally blind. Id. More specifically, his right
eye's visual acuity was less than 20/200 with a pinhole
field of vision. Id. Additionally, it was determined
Plaintiff would not, in all likelihood, recover that vision.
Id. This was so because the eye presented with a
“full thickness macular tear, ” the consequence
of an irreversible condition: macular degeneration.
the right eye, the physicians found the left eye to be
healthy at first. Id. At the September 8, 2008
evaluation, Plaintiff's left eye vision tested as 20/20.
Id. However, by January 2009, his left eye vision
declined; Dr. Matchinski's results ranged from 20/80 to
20/200. Id. At the time of ALJ Michaelson's
December 2009 decision, according to the records, Plaintiff
was shown to have “no central vision” in the
right eye and in the left “visual acuity [of] 20/100
with only a pinhole vision, ” when corrected.
Id. Both eyes had pinhole vision. Id. These
findings taken together meant that, in 2009, Plaintiff was
legally blind. [R. 100.]
time of Plaintiff's 2015 DIB application, he maintained
that he qualified as disabled under the Act because of his
vision. [R. 102, 159-60, 222-24.] On May 29, 2015, Plaintiff
was examined by Dr. David Hillman, M.D., who performed an
Ophthalmology Consultative Examination. [R. 446-47.] At that
examination, Dr. Hillman found that Plaintiff had significant
vision loss in the right eye: his vision in that eye
“could not be plotted due to poor vision, ” and
the only metric obtained demonstrated that, when using the
right eye alone, Plaintiff could recognize hand motions from
a distance of two feet. [R. 446.] As for his left
eye vision, Dr. Hillman found that, when corrected,
Plaintiff's visual acuity in the left eye was 20/40.
Id. Dr. Hillman noted Plaintiff's left eye was
healthy and its field of vision was “essentially
full.” Id. This constituted a dramatic
improvement from the left eye vision results from 2009. [R.
Hillman's findings are consistent with the 2015 record,
which notes Plaintiff's macular degeneration and baseline
blindness in the right eye throughout but references only
“decreased vision” the left eye, if even that.
[R. 254, 260, 468, 483.] Plaintiff has not disputed the 2015
record or consultative examination results with respect to
his left eye vision, nor has he indicated his vision in that
eye has since declined. [R. 73-93.]
Plaintiff's Perirectal Abscess and Colostomy Bag
February 15, 2015, the alleged disability onset date,
Plaintiff was admitted to the hospital with symptoms of
gluteal pain, swelling, and draining. [R. 246.] Plaintiff
underwent perianal abscess drainage with primary fistulotomy.
Id. Plaintiff was then diagnosed with a necrotizing
soft tissue infection affecting the right and left perirectal
and gluteal areas, the left ischiorectal fossa, and the
anterior perineum. [R. 284.] On February 16, and 23, 2015,
physicians performed surgeries on Plaintiff to remedy his
physical ailments; among them was a sigmoid loop colostomy.
2, 2015, Plaintiff attended a follow-up appointment with his
surgeon, Dr. Joanne Favuzza, M.D. [R. 477-78.] The surgeon
found that Plaintiff's wound was healed and no further
dressing changes were needed. Id. The wound site
looked good and Plaintiff showed no bodily “fluctuance
or swelling.” Id. However, while Plaintiff did
complain of right scrotal pain and occasional perineal pain,
Dr. Favuzza noted that Plaintiff had not sought treatment for
any pain prior to this follow-up visit. Id. In fact,
when it came to his pain, Plaintiff indicated he stopped
using Tylenol and Ultram for pain management due to their
“side effects.” Id. He reported he was
instead “self treating his pain [though] he would not
disclose how he was ‘dealing' with this pain”
Id. Dr. Favuzza noted Plaintiff “should not
require any pain medication and will not be receiving any
prescriptions for narcotics.” [R. 478.] She referred
him to a urologist to discuss his scrotal pain. Id.
9, 2015, Plaintiff then followed up with Dr. Megan Gayeski,
M.D., to whom he reported groin irritation and pain. [R.
473-76.] Plaintiff was prescribed topical creams and referred
him to dermatology and urology. Id. Dr. Gayeski
reiterated to Plaintiff “that his surgeon [Dr. Favuzza]
stated that he should not need narcotics at this time.”
is no indication that Plaintiff sought additional pain
treatment beyond that date in the record. In October of 2015,
Plaintiff attended his last follow-up appointment with Dr.
Favuzza. [R. 658.] At that appointment, it was determined
that Plaintiff's groin pain was resolved, and the wound
was healed. Id. There were no reported ...