The opinion of the court was delivered by: GARY SHARPE, Magistrate Judge Page 2
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 diplopia*fn1. 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.
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,
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.
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
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 pressure*fn3 ("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
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 trabeculectomy*fn4 on his right eye on October
19, 1993. This produced a dramatic reduction in pressure, a decrease of
approximately three diopters in myopia,*fn5 and a hypotensive
maculopathy.*fn6 On February 28, 1994, Dr. Santangelo surgically revised
the filtering bleb in his right eye. The increased IOP partially resolved
maculopathy, but he had three diopters less myopia in his right eye
than his left. This produced significant aniseikonia*fn7. In June of
1994, Whittaker developed hyperphoria*fn8 in his right eye.
B. Summary of Medical Evidence During the Relevant
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
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 anisometropia*fn9 chloral folds in the right
eye, open angle glaucoma, status post filtering surgery in the right 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 metamorphopsia*fn10 of the right eye. ...