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Falon B. v. Saul

United States District Court, N.D. Illinois, Eastern Division

September 4, 2019

FALON B., o.b.o. B.H., Plaintiff,
ANDREW M. SAUL, Commissioner of Social Security, [1] Defendant.



         On November 7, 2014, the claimant, Falon B. ("Plaintiff'), [3] filed a pro se application for supplemental security income ("SSI") on behalf of her minor daughter, B.H., alleging that B.H. had been disabled since she was born on June 4, 2014 (R. 113.) After her claim was denied initially and on reconsideration, Plaintiff sought and received a hearing before an administrative law judge ("ALJ"). Plaintiff appeared pro se at the hearing on January 30, 2017, and on May 5, 2017, the ALJ issued a written opinion denying her application for benefits. (R. 9.) On March 17, 2018, the Appeals Council denied Plaintiffs request for review of the ALJ decision (R. 1), making the ALJ's decision the final decision of the Commissioner. Jozefyk v. Berryhill, 923 F.3d 492, 496 (7th Cir. 2019).

         On November 19, 2018, Plaintiff filed a pro se brief seeking reversal or remand of the Commissioner's decision denying her application for SSI. (D.E. 21.) The Commissioner has filed a cross-motion for summary judgment asking the Court to affirm the decision denying benefits. (D.E. 24.) Although the Court gave Plaintiff additional time to file a reply brief in support of her motion (D.E. 29), she did not do so. The matter is now fully briefed. For the following reasons, the Court denies Plaintiffs motion and grants the Commissioner's motion.

         I. B.H.'s Medical Record

         B.H. was born on June 4, 2014, with a congenital eye anomaly: her right eye had a larger orbit than the left. (R. 191-92). B.H. was otherwise healthy; she and her mother were discharged from the hospital after three days, with instructions to follow normal newborn care. (Id.)

         On September 15, 2014, ophthalmologist, Mark J. Greenwald, M.D., evaluated B.H. and diagnosed her with coloboma of fundus (the back, interior part of the eye, which includes the retina) in both eyes and microphthalmos in her left eye.[4] (R. 203.) In the right eye, Dr. Greenwald found that the fundus coloboma was minimal and the macula (the functional center of the retina) was normal, and he expected B.H. would have normal lifetime vision in the right eye. (R. 204, 207.) However, the fundus coloboma was moderate in the left eye, and while there was some preservation of the macula in the left eye, Dr. Greenwald was uncertain of the visual prognosis in that eye. (R. 203-04.) Moreover, the microphthalmos combined with amblyopia (lazy eye) in the left eye concerned him regarding vision. (R. 204.) Dr. Greenwald prescribed patching the left eye one hour per day to improve visual potential in that eye.[5] (R. 207.) At a follow-up visit on December 29, 2014, Dr. Greenwald's examination of B.H. was unchanged. (R. 243.) Plaintiff found it difficult to patch B.H.'s right eye because it made her irritable, but she reported that B.H. would occasionally reach for an object with the patch on. (Id.)

         On February 25, 2015, a non-examining state agency physician reviewed B.H.'s records on behalf of the Social Security Administration ("SSA"). The physician found that B.H's eye impairment was severe, but that she did not meet a child listing for loss of central visual acuity. (R. 55-56.) In addition, the report stated that B.H.'s impairment was not functionally equivalent to a listing because other than a marked limitation in the domain of health and physical well-being, B.H. had no other significant problems.[6] (R. 56-57.) On June 30, 2015, the state agency findings were affirmed on reconsideration. (R. 65-66.)

         On April 6, 2015, B.H. was again evaluated by Dr. Greenwald. At that visit, Dr. Greenwald noted that the size of B.H.'s left eye was possibly decreasing, with possible accumulation of subretinal fluid. (R. 352.) Dr. Greenwald indicated his intent to discuss with another physician the possibility of retinal detachment repair and evaluation of the left eye under anesthesia. (Id.) He noted that B.H.'s right eye could fix and follow, but the left still could not. (R. 361.)

         On June 7, 2015, B.H. was evaluated by the Chicago Lighthouse for People Who Are Blind or Visually Impaired. (R. 371.) The evaluator observed little to no functional vision in B.H.'s left eye and normal vision on the right. (R. 373.) Overall, the evaluator found that B.H.'s visual development was typical and her current set of visual skills were meeting expectations; however, the evaluator opined that as B.H. got older, her visual skills will need to be monitored so that she did not present with delays in her visual and compensatory skill set, and she should be given special accommodations to maximize to continue building her visual skills. (R. 373-74.)

         At B.H.'s 18-month-old check-up on December 18, 2015, B.H.'s pediatrician noted that B.H. "look[ed] good" despite delayed development, acute bronchiolitis, [7] and her fundus coloboma and left microphthalmos. (R. 377-78.) At B.H.'s well-child visit on July 15, 2016, her pediatrician noted that she continued to gain healthy weight, but she was still noted to have delayed development, intermittent asthma, left microphthalmos and fundus coloboma. (R. 380-81.)

         On September 28, 2016, B.H. was examined by the Illinois Eye Institute. Plaintiff reported that B.H. asked questions about her left eye and noticed that she did not see as well out of that eye. (R. 384.) The evaluating optometrist opined that B.H. was likely to have sensory exotropia with intermittent left eye turn out, that is, her left eye will likely deviate outward due to poor vision, and she discussed with Plaintiff treatment for this in the future.[8] (R. 387.) B.H. received a prescription for eyeglasses with a strength of.75 in her right eye and .00 strength in her left eye as well as cosmetic magnification for her left eye. (R. 383.)

         II. Evidentiary Hearing

         On January 30, 2017, Plaintiff appeared without her daughter or an attorney at the hearing in support of her claim for benefits for B.H.[9] Plaintiff had read and received the SSA's notice regarding the benefits of representation, and the ALJ walked her through the notice, explaining how an attorney could help and how she might be able to obtain an attorney without incurring out of pocket expenses. (R. 31-32.) The ALJ explained that Plaintiff could waive her right to an attorney or seek additional time to obtain one. (R. 32.) Plaintiff responded that she had already called several places recommended by the SSA and family members, but they either do not represent children or they do not call her back or she is at work when they call back. (R. 30, 33-34.) The ALJ asked if she wanted to try one more time to find an attorney because he knew that some attorneys did represent children, but Plaintiff decided to waive her right to representation for purposes of the hearing so that the hearing could proceed. (R. 33-35.)

         Plaintiff testified that she and B.H.'s father "take pride in teaching her colors, shapes, making her identify letters and numbers. She's not advanced but she's, to be someone with the condition like hers, she, from what we're teaching her, she's catching on, slowly but surely." (R. 41.) Plaintiff testified that B.H. frequently cries because she cannot see out of her smaller eye. (R. 48-49.) In addition, Plaintiff testified that she brought B.H. to the emergency room recently because she fell and cut her head open, which Plaintiff attributed to her vision problems. (R. 47, 50.)

         III. ...

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