IAIN D. JOHNSTON, Magistrate Judge.
Plaintiff Shirley J. Heitkam applied for Social Security disability benefits in 2012, when she was in her mid-fifties. She alleged that back, hip, feet, and other body pains from fibromyalgia and arthritis, and obesity make it difficult to walk, stand, or even sit for sustained periods. She allegedly spends much of her day in a recliner with her feet elevated. These conditions also cause her hands to become sore after prolonged use. She has histoplasmosis, a fungal infection, that led to a partial loss of vision in her right eye. Because of this limitation, she claims to get headaches after 10 to 15 minutes of reading or looking at a computer screen. The latter assertion is critical. Given her age and other factors under Social Security disability regulations, the sole issue is whether she could work as a data entry clerk, a job requiring typing and working at a computer screen. It was the only one of her past relevant jobs at the sedentary level and, thus, the only one of those jobs she could possibly do now.
The administrative law judge ("ALJ") held two hearings, with a different doctor and vocational expert testifying at each. Although these experts opined about several issues, the eye issue received the most attention. There was much back and forth about how to describe this particular impairment and what limitations, if any, it imposed. In fact, it appears a second hearing was held to address this particular issue. In addition to the hearing testimony, plaintiff's treating ophthalmologist, Dr. Suresh Chandra, submitted several opinion letters. In a written decision, the ALJ found that plaintiff's eye (and other) problems would not prevent her from working full-time as a data entry clerk. The ALJ found (among other things) that the two testifying doctors were more credible than plaintiff's treating doctor. Plaintiff now seeks a remand, raising a plethora of arguments attacking almost all aspects of the decision. Although this Court finds that many of these arguments would not warrant a remand on their own, the Court concludes that a remand is required based largely on the unresolved eye issue.
To understand this issue, which will be the focus of this opinion, it will be helpful to chronicle at some length how it was addressed in the two hearings. The hearings provide a peek behind the curtain of the ALJ's reasoning. These hearings contain more detail and analysis than was included in the ALJ's decision, which glosses over certain questions raised in the hearings.
The first hearing was held on May 5, 2014. Plaintiff testified that she "cannot [ ] stare at a computer screen for hours on end" and that she gets "headaches in the back of [her] head if [she looks] at one thing too long." R. 62. She described the problem as being a strain on her left, or "good," eye that resulted from her not being able to fully or properly focus with the her right, or "bad," eye. R. 69. This problem was one reason she quit her last job as a bank teller in 2007. She stated that, because of the eye problems, she had to double and triple check deposit and cash back amounts.
The ALJ called Dr. Gilberto Munoz, whose specialty is listed as "Family Practice," to testify as a medical expert. R. 147. He identified plaintiff's impairments as follows: "Fibromyalgia, hypertension, chronic kidney disease, right eye blindness, bilateral hip pain, and low back pain." R. 73. He opined that plaintiff had the residual functional capacity ("RFC") to do sedentary work subject to various restrictions. Relevant to the eye problems, plaintiff could not "drive for defensive purposes," could not work in any "safety sensitive positions," and could not be around heavy machinery or work at heights. R. 74. The ALJ then asked whether plaintiff would "be limited to monocular vision."
Recognizing this explanatory gap, plaintiff's counsel later in the hearing probed further. In the following colloquy, counsel elicited at least a partial explanation, although it is still one that (to this Court's layperson eyes) is not entirely clear:
R. 75-76. It is worth pausing to note several points. The precise issue plaintiff's counsel focused on initially is whether headaches "could be" caused by the histoplasmosis—in other words, whether they were possible. Another point is that Dr. Munoz introduced the concept of depth perception as being relevant to the analysis. Another emerging question suggested by this exchange is the relevance of a single eyechart test (e.g. "20/20 vision" in one eye) to the broader question of whether headaches could result from using only that eye for eight hours or so of typing in a day.
The next witness was a vocational expert, Richard Fisher. His testimony was brief. The ALJ asked him two hypothetical questions. The first question was based on Dr. Munoz's RFC, and asked whether a person with plaintiff's age, education, and work experience, who was limited to "sedentary work, except we have occasional postural and monocular vision" and who was limited to "safety sensitive positions" and "no unprotected heights, no dangerous moving machinery," would be able to do her past relevant work. R. 77. Mr. Fisher stated that plaintiff could work in her prior job as a data entry clerk. Mr. Fisher did not discuss what the specific duties of this job were. The second question added the qualification that plaintiff would need to take a 5 to 10 minute break every 20 minutes, a limitation presumably designed to account for the alleged eyestrain. Dr. Fisher opined that this qualification would eliminate all work for which she was qualified. At this point, plaintiff's attorney stated that he wanted "to get a medical source statement from the ophthalmologist." R. 77. The following colloquy ensued:
R. 78.
On June 4, 2014, plaintiff submitted a letter from Dr. Chandra, which states in pertinent part as follows:
R. 492.
A decision was made to hold a second hearing with a new medical expert. Although the record does not state who made this decision or why they did so, it is reasonable to assume that it was related to the unresolved eye issue. The second hearing was held on August 12, 2014. Plaintiff was present but did not testify at any length. The ALJ began by acknowledging that plaintiff had submitted Dr. Chandra's letter as well as a letter from Susan Entenberg, a vocational expert plaintiff hired. In this letter, Ms. Entenberg opined as follows:
R. 293.
After these preliminaries, the ALJ called Dr. Ronald Semerdjian to testify.
ALJ: We might actually need to have the doctor clarify that because that's the problem I have is that he's talking about the right eye causing eye strain and that's certainly going to be the case. I wonder why there couldn't be some device such as a patch or something to reduce stress on the eye. If you're saying that the left eye will take on additional responsibility for the strain, then maybe that's an issue.
R. 42-43. To again pause the narrative and offer some interim commentary, the Court notes that Dr. Semerdjian's first answer agrees with the general conclusion of Dr. Chandra's letter— namely, that the eye damage from plaintiff's histoplasmosis in theory could cause headaches after extended computer use, just as plaintiff was alleging. Put differently, Dr. Semerdjian's testimony is at odds with Dr. Munoz's earlier testimony on this issue. Another point of contrast between these two doctors is that Dr. Semerdjian concedes that he is "not an ophthalmologist" and hedges his statements with phrases such as "I think," suggesting he viewed his opinion as tentative to some degree. Midway through this colloquy, the ALJ interrupted by announcing that he had "a problem" with Dr. Semerdjian's testimony and questioned whether the eye problem was caused by the left eye working too much or whether it was the unproductive interaction between the two eyes. The ALJ concluded that "clarification" was needed from a doctor.
The ALJ then asked the vocational expert, Richard Reidl, whether he would "care to comment on the extent to which [plaintiff] may or may not be able to [do the duties for the data entry job] with these eye limitations." R. 44. Mr. Reidl gave the following fairly long and technical answer, one that is not easy to decipher and arguably not worth quoting. But the Court does so to illustrate the analytical uncertainties about this issue:
R. 44-45. Like Ms. Entenberg, Mr. Reidl seems to be opining about terms, such as near and far acuity, that may have both a medical and a vocational meaning. Thus, not only is there a range of medical opinions in this case, there is a similar divergence of opinion among the vocational experts.
After Mr. Reidl gave the answer quoted above, the ALJ did not ask any follow up questions but instead turned back to Dr. Semerdjian to try to pinpoint the cause and nature of the eyestrain. The following exchanged ensured:
R. 44-45. Here again, a few points should be noted. Dr. Semerdjian, after prompting from the ALJ, seems to backtrack a bit from his earlier statements that were more supportive of plaintiff's theory of the case. Note also plaintiff's counsel's appeal to "common sense" in trying to figure out this issue.
At the end of the hearing, the ALJ focused on the possibility of using an eye patch to address the problem, a remedy raised sua sponte:
R. 49-51.
After the hearing, the plaintiff provided another letter from Dr. Chandra. The letter, which is similar to the first one, does not mention an eye patch specifically, although it does make a general reference to "closing" the right eye. The letter states as follows:
R. 494.
To briefly sum up, the ALJ and a gaggle of experts (both medical and vocational), as well as plaintiff's counsel, all offered opinions about the nature and extent of plaintiff's eye problems, but there was no clear consensus or resolution on several key points.
On October 27, 2014, the ALJ issued his decision finding plaintiff not disabled. However, rather than confront these lurking issues, the ALJ mostly ignored them, offering a vague analysis. For this reason, the Court finds that a remand is warranted.
The Court now considers the ALJ's specific reasoning for finding that plaintiff would be able to work despite the eye limitation. As part of this finding, the ALJ concluded that plaintiff's testimony was "not entirely credible." The ALJ addressed the eye argument in two places. The first is in the following paragraph:
R. 19. Aside from the general problem already identified—that the ALJ did not confront the major issues raised at the hearing—this paragraph is not sufficient on its own terms. It contains two reasons. The first reason is clearly unsatisfactory. The ALJ claimed that plaintiff testified that her driving problems were caused only by her sitting difficulties and had nothing to do with her vision problems. But this assertion ignores plaintiff's testimony. She stated as follows: "due to the limited vision I am very cautious about driving. I rarely drive out of our little town of Lena, and also I don't drive long distances because of the back pain and being sedentary for too long." R. 60 (emphasis added). Perhaps the ALJ inadvertently overlooked this testimony, but whatever the reason, the ALJ was misinformed, and this rationale thus rests on a mistaken premise. See Allord v. Barnhart, 455 F.3d 818, 821 (7th Cir. 2006) (an ALJ may not base a credibility determination on "errors of fact or logic").
The second reason is that plaintiff "usually" denied having headaches. This rationale is potentially relevant. But there are still several questions that must be addressed on remand. As a factual matter, it is unclear what the ALJ meant by "usually." The ALJ did not cite to the evidence, and it is not clear how frequent plaintiff complained about headaches (if she complained at all). A separate issue is whether the ALJ considered the possibility that plaintiff may never have complained because she avoided headaches by not reading or using the computer for prolonged periods. For these reasons, the above paragraph provides an insufficient basis for rejecting plaintiff's eyestrain claim.
The second place the ALJ addressed the argument is later in the opinion where he assessed the expert opinions. The ALJ stated as follows:
R. 20. This explanation is insufficient for several reasons. The main reason is that it rests on a skewed characterization of what these experts testified to. Contrary to the hearing testimony, which was mixed with no clear consensus, the ALJ's explanation pares away all this complexity and portrays the hearing as a simple battle of experts in which two out of three of them agreed with the ALJ and, further, did so by providing a "thorough" and "detailed" explanation. One reason this Court summarized the hearing testimony at length was to illustrate why the ALJ's portrayal is misleading. The Court will highlight a few points. For one thing, it is a stretch to describe Dr. Munoz's testimony as thorough, particularly on the critical issue of eyestrain headaches. The Court is still unclear why he (apparently) believed that such headaches were not possible. More problematically, the ALJ's suggestion that Dr. Munoz and Dr. Semerdjian jointly and unqualifiedly opposed Dr. Chandra's opinion is not supported by the record. Plaintiff makes a credible argument that Dr. Semerdjian agreed with Dr. Chandra. As summarized above, Dr. Semerdjian's initial answers provide support for this view, which if true would mean that the scorecard should read two-to-one in plaintiff's favor. Even if one took the position that Dr. Semerdjian later backtracked to some extent on his initial opinion, then it would mean that his testimony was equivocal and tentative. To his credit, Dr. Semerdjian recognized that he was being asked to opine on an issue outside his expertise. But the ALJ's opinion washes away all such doubts and qualifications and simply announces in conclusory fashion that both Dr. Semerdjian and Dr. Munoz concluded that plaintiff had the capacity for a "wide range" of sedentary work. R. 20.
Another problem, one that plaintiff complains about, is that the ALJ did not follow the treating physician rule and specifically did not explicitly apply the checklist of factors. As explained in earlier opinions, this Court takes the view that an explicit analysis under both steps of this rule is required, including an explicit discussion of the six checklist factors. See Duran v. Colvin, 2015 U.S. Dist. LEXIS 101352, *8-9 (N.D. Ill. Aug. 4, 2015); see also Trevizo v. Berryhill, 2017 U.S App. LEXIS, 12263, *23 (9h Cir. July 10, 2017) ("the ALJ erred by failing to apply the appropriate factors . . . This failure alone constitutes reversible legal error."). Here, the ALJ clearly did not follow this rule. For example, the ALJ did not seriously consider physician's degree of specialization (fifth checklist factor). This factor strongly favored Dr. Chandra's opinion. According to plaintiff, and undisputed by the Government, Dr. Chandra was retina specialist. He was also plaintiff's treating physician. On the other hand, Dr. Munoz specialized in family practice, and Dr. Semerdjian specialized in internal medicine and pulmonology. In short, Dr. Chandra's experience (all other things being equal) meant that his opinion deserved more weight than the other two opinions. The ALJ only acknowledged this disparity briefly, stating in passing that Dr. Semerdjian "acknowledge[d] that he is not an ophthalmologist." But there is no sense that the ALJ gave this factor any weight.
As for the supportability and consistency (the third and fourth checklist factors), there is no sense that the opinions of Dr. Munoz and Dr. Semerdjian were more consistent, or fit better with the overall evidence. Again, the summary of the hearing testimony illustrates this point. As noted previously, Dr. Munoz offered no theoretical justification for his main conclusion about eyestrain. As for Dr. Semerdjian, to the extent that his opinion could be interpreted as being supportive of the ALJ, it rested mostly on the anecdotal observation that he had patients "who have one eye and who work full-time." R. 45. But this answer does not address the issue here of whether it was the interaction between the two eyes, and not merely having only one eye, that caused the problem. Also, Dr. Semerdjian did not provide any details about what jobs these patients had—specifically, whether they typed full-time. For all these reasons, on remand, the ALJ should explicitly apply the steps of the treating physician rule.
It is true, as the ALJ stated, that Dr. Chandra only opined that it was "possible" that plaintiff's histoplasmosis caused headaches and that he appeared to be relying on plaintiff's subjective complaints to some degree. The ALJ certainly may consider these factors along with the others in evaluating Dr. Chandra's opinion on remand. However, the larger problem with the ALJ's analysis is that that the ALJ never addressed the deeper ambiguity that existed throughout the hearing. One might believe, as apparently Dr. Munoz did, that plaintiff's condition simply could not cause eyestrain and headaches as she claimed. This would be closer to a medical judgment about the nature of these illnesses, and about the way the eye and brain work. Alternatively, one could believe, as apparently Dr. Semerdjian and Dr. Chandra did, that it was possible that the histoplasmosis-related damage could in theory cause the headaches and thereby prevent plaintiff from working full-time at a computer screen. Under this second scenario, one would then have to further assess whether plaintiff was believable in claiming that she was, in fact, experiencing these headaches and eyestrain in the way she claimed. This judgment would turn more on the credibility analysis than on the medical analysis. But these are two different analytical paths, and it is not clear which one the ALJ took. It is also not clear whether or how the ALJ assessed the issue of the eye patch. Even though the ALJ identified the eye patch as being the key unresolved issue, the ALJ never mentioned it in the written decision. If the ALJ ultimately concluded for some reason that using an eye patch was not a possible solution, the ALJ should have acknowledged as much given all the emphasis placed on it at the hearing.
To sum up on the eye issue, the Court finds that a remand is required to address these issues. At this point, the Court is not expressing any opinion on the ultimate outcome and recognizes that more analysis may not lead to an easy (or different) answer on remand. It is tempting to dismiss eyestrain as a relatively minor problem, and also to believe that it can be easily evaluated by the layperson. For example, the Mayo Clinic website refers to it as a "common condition" where "your eyes get tired from intense use, such as while driving long distances or staring at computer screens," and states that it "usually isn't serious" and "goes away once you rest your eyes." At the same time, it is possible that there are deeper, less understood technical issues that may be overlooked in such a layperson analysis. In the hearings, the experts used a number of terms, such as near acuity and central vision, that may indicate issues that are not readily apparent to the ALJ and this Court. For this reason, on remand, the ALJ should seek the opinion of an expert with experience and training in ophthalmology. HALLEX I-2-5-34A.1. In the second hearing, the ALJ himself stated that "clarification" was needed from a doctor.
Having concluded that a remand is required on this issue, the Court need not address all of plaintiff's remaining arguments, many of which are more minor and would not necessitate a remand. Nevertheless, in fairness to plaintiff, it should be noted that she has argued strenuously that it is the combination of all her numerous impairments (including pain from fibromyalgia, hand problems, kidney issues), and not just the eye problem, that makes it impossible for her to work full-time as a data entry clerk. It is often difficult to evaluate an argument that an ALJ failed to consider the cumulative effect of impairments especially when, as here, the ALJ included general language indicating that such an inquiry had been undertaken. However, as the Seventh Circuit has emphasized, it is important that ALJs consider the cumulative impairments, and ALJs should provide more analysis to ensure that this inquiry has been fulfilled.
Plaintiff specifically complains that the ALJ failed to consider the added burden from her obesity and, in particular, the possibility that it may affect her ability to sit for an entire work day. She cites to Browning v. Colvin, 766 F.3d 702 (7th Cir. 2014) where the Seventh Circuit noted the following: "[T]he likely difficulties that morbidly obese persons . . . face even in doing sedentary work are sufficiently obvious to have required the [ALJ] to instruct the consulting physician to consider the potential effect of the plaintiff's obesity on her ability to do sedentary work." Id. at 707. It is true that the ALJ stated that plaintiff's impairments had "been considered in combination with her obesity," but there was little evidence that the ALJ gave it any serious consideration. R. 18. The ALJ did not mention in this statement that plaintiff was almost morbidly obese. Also, Dr. Semerdjian identified obesity, along with the eye problem, as the two major issues affecting plaintiff. The ALJ's decision does not reflect this emphasis.
For these reasons, plaintiff's motion for summary judgment is granted, the Government's motion is denied, and the case is remanded to the Commissioner for further proceedings consistent with this opinion.
