Senn v. Astrue (CONSENT)

Filing 17

MEMORANDUM OPINION. Signed by Honorable Judge Terry F. Moorer on 7/31/2013. (jg, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
SHAWN DAVID SENN,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.

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CIVIL ACTION NO. 1:12cv736-TFM
(WO)

MEMORANDUM OPINION
I. PROCEDURAL HISTORY

Plaintiff Shawn David Senn (“Senn”) applied for disability benefits pursuant to Title
II of the Social Security Act, 42 U.S.C. §§ 401 et seq., and for supplemental security income

benefits pursuant to Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq., alleging
that he is unable to work because of a disability. His application was denied at the initial
administrative level. The plaintiff then requested and received a hearing before an
Administrative Law Judge (“ALJ”). Following the hearing, the ALJ concluded that the
plaintiff was not under a “disability” as defined in the Social Security Act and denied the
plaintiff’s claim for benefits. The Appeals Council rejected a subsequent request for review.
The ALJ’s decision consequently became the final decision of the Commissioner of Social
Security (“Commissioner”).1 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).

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Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub.L. No.
103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social

Pursuant to 28 U.S.C. § 636(c), the parties have consented to entry of final judgment by the
United States Magistrate Judge. The case is now before the court for review pursuant to 42
U.S.C. §§ 405 (g) and 1631(c)(3). Based on the court's review of the record in this case and
the parties’ briefs, the court concludes that the Commissioner’s decision should be
REVERSED and REMANDED.
II. STANDARD OF REVIEW
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the
person is unable to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result
in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months . . .
To make this determination,2 the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920.
(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person's impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the above questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative
answer to any question, other than step three, leads to a determination of “not

Security matters were transferred to the Commissioner of Social Security.
2

A “physical or mental impairment” is one resulting from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques.

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disabled.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3
The standard of review of the Commissioner’s decision is a limited one. This court
must find the Commissioner’s decision conclusive if it is supported by substantial evidence.
42 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). “Substantial
evidence is more than a scintilla, but less than a preponderance. It is such relevant evidence
as a reasonable person would accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971). A reviewing court may not look only to those parts of
the record which support the decision of the ALJ but instead must view the record in its
entirety and take account of evidence which detracts from the evidence relied on by the ALJ.
Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986).
[The court must] . . . scrutinize the record in its entirety to determine the
reasonableness of the [Commissioner’s] . . . factual findings . . . No similar
presumption of validity attaches to the [Commissioner’s] . . . legal conclusions,
including determination of the proper standards to be applied in evaluating
claims.
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
III. INTRODUCTION
A. The ALJ’s Decision
Senn was 33 years old at the time of the hearing and has completed the eighth grade.
(R. 46.) He has prior work experience as a construction worker and automobile mechanic.
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McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986) is a supplemental security income case (SSI).
The same sequence applies to disability insurance benefits. Cases arising under Title II are appropriately
cited as authority in Title XVI cases. See e.g. Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981) (Unit A).

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(R. 209.) Senn alleges that he became disabled on January 15, 2010, due to memory loss,
headaches, hearing loss, vision problems, and back pain. (R. 49, 216.) After the hearing, the
ALJ found that Senn suffers from severe impairments of head trauma, headaches, vision
problems, and back pain. (R. 28.) The ALJ found that Senn is unable to perform his past
relevant work, but that he retains the residual functional capacity (“RFC”) to perform light

work. (R. 31.) Testimony from a vocational expert led the ALJ to conclude that a significant
number of jobs exist in the national economy that Senn could perform, including work as a
bench assembler, garment bagger, and cafeteria attendant. (R. 34.) Accordingly, the ALJ
concluded that Senn is not disabled. (Id.)
B. The Plaintiff's Claims
Senn presents the following issues for review:
(1)

Whether the vocational expert’s inaccurate testimony cannot
constitute substantial evidence to support the ALJ’s fifth step
finding?

(2)

Whether the ALJ erred in finding Senn engaged in substantial
gainful activity during the entirety of the period at issue?

(3)

Whether the ALJ erred in failing to properly consider Senn’s hearing loss?

(4)

Whether the new and material evidence warrants remand?

(Doc. No. 12, Pl. Br. at 1.)
IV. DISCUSSION
Senn raises several issues and arguments related to this court’s ultimate inquiry of
whether the Commissioner’s disability decision is supported by the proper legal standards
and by substantial evidence. See Bridges v. Bowen, 815 F.2d 622 (11th Cir. 1987).

However, the court pretermits discussion of the plaintiff’s specific arguments because the
court concludes that the Commissioner erred as a matter of law, and thus, this case is due to
be remanded for further proceedings. Specifically, the court finds that the Commissioner
failed to consider Senn’s hearing loss as a severe impairment and failed to resolve
inconsistencies in the medical records regarding memory loss.
Before the date of onset in January 2010, the claimant was involved in a series of
unfortunate events. While driving a pickup truck along Highway 30A during a rainstorm on
April 8, 2003, Senn was involved in a head-on accident with a garbage truck. (R. 327.)
After the accident, Senn complained of ringing in the ears, loss of balance, numbness in both
arms, severe headaches, and back pain. (R. 301-02.) On May 28, 2003, Dr. Michael W.
Reed, an orthopedic surgeon, assessed cervical disc disease with cervical strain consistent
with a work-related injury and prescribed Bextra, an anti-inflammatory medication. (R. 30304.)
On March 4, 2004, while doing road work in a striping truck on the second day of his
new construction job, Senn was involved in a head-on accident with a “pilot” truck. (R. 216,
318, 361.) Senn went through the windshield of his vehicle, hit the asphalt, and lost
consciousness. (R. 49, 322, 352.)

He remained in the intensive care unit of Flowers

Hospital for five or six days. (R. 49.) On March 5, 2004, a CT scan of his head indicated
“hematoma of the left side of the scalp with a contra q injury of the right temporal and
parietal cortical surface” and “probable edema in the right side of brain with effacement of
the right lateral ventricle.” (R. 309.) In a March 26, 2004, radiology questionnaire, the
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radiologist noted that Senn “still has [headache], cannot hear out of [left] ear, [and] slurred
speech.” (R. 338.) On April 8, 2004, Senn returned for a follow-up appointment with Dr.
Dennis H. Becker, a neurosurgeon, complaining of “poor memory, [decreased] hearing [left]
ear, [and] pain [right] eye.” (R. 339.) On January 27, 2005, a CT scan indicated “what
probably represents mild encephalomalacia/volume loss” and extensive paranasal sinus
disease. (R. 454.)
In January 2010, Senn slipped and fell down a flight of snow-covered stairs. (R. 47,
523-24.) On February 25, 2010, Senn went to Flowers Hospital complaining of lower neck
pain which began after the fall. (R. 524.) Dr. David Claassen’s clinical impression was
acute cervical strain. (Id.) Upon discharge, Senn was prescribed Robaxin for muscular pain
and spasms and Lortab for pain. (Id.) On March 1, 2010, Senn went to Southeast Alabama
Medical Center complaining of an earache, headaches, and nausea. (R. 384, 388.) Medical
personnel noted clear fluid draining from his right ear. (Id.) A CT scan indicated “ethmoid
and minimal sphenoid sinus inflammatory disease but no skull fracture [] seen.” (Id.) Upon
discharge, Senn received instructions for an adult head injury, in which he was advised:
You have had a head injury which does not appear serious at this time. A
concussion is a state of changed mental ability, usually from a blow to the head
....
(R. 380.) Senn was also advised that he could experience several minor symptoms after
discharge, including difficulties with memory, concentration, and hearing. (Id.) Thus, Senn
suffered at least three head injuries which affected his ability to hear prior to the January 15,
2010 date of onset.
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The ALJ did not list hearing loss as a severe impairment. The severity step is a
threshold inquiry which allows only “claims based on the most trivial impairment to be
rejected.” McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986). Indeed, a severe
impairment is one that is more than “a slight abnormality or combination of slight
abnormalities which would have no more than a minimal effect on an individual’s ability to
work.” Bowen v. Yuckert, 482 U.S. 137, 154 n. 12 (1987) (citing with approval Social
Security Ruling 85-28 at 37a).
A physical or mental impairment is defined as “an impairment that results from
anatomical, physiological or psychological abnormalities which are demonstrable by
medically acceptable clinical and laboratory diagnostic techniques.”

42 U.S.C. §

1382c(a)(3)(c). The plaintiff has the “burden of showing that [her] impairments are ‘severe’
within the meaning of the Act.” McDaniel, 800 F.2d at 1030-31. Once the plaintiff
establishes that he suffers from a severe impairment, the ALJ is not entitled to ignore that
evidence.
The evidentiary materials are replete with references to the plaintiff’s loss of hearing
and auditory problems. (R. 48, 250-51, 255, 301, 338-39, 357-58, 384, 568, 599.) For
example, on May 26, 2004, Dr. William J. Knox, an otolarynologist, conducted several
hearing tests, including otoacoustic emissions testing which revealed normal hearing in the
right ear and a drop of 30 to 40 decibels in the left ear. (R. 357.) Fork testing also indicated
conductive hearing loss of the left ear. (R. 358.) Dr. Knox found that “most likely, [Senn]
has suffered some degree of labyrinthine and cochlear trauma to the left ear” and
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recommended additional testing. (Id.) In a July 1, 2004, letter to a worker’s compensation
insurance company for Senn’s employer, Dr. Knox stated:
Sean never returned for his second Audiogram. The first one was felt to be
unreliable. At the time of that hearing test though, it did appear that he had
normal hearing in at least one ear and a mild to moderate drop in the other ear.
He should be able to return to work. He may have difficulty localizing sound
due to the damage to the one ear and he probably should not be [in] a position
where sound localization is important.
(R. 355.) On March 1, 2010, an emergency room physician’s clinical impression was acute
otalgia of the right ear. (R. 385.) During an examination at Eye Center South on September
2, 2011, Senn complained of headaches, hearing loss, and an earache. (R. 569.)
The court notes that several medical records and letters were provided to the Appeals
Council after the ALJ rendered his decision. Because additional evidence was submitted and
considered by the Appeals Council after the ALJ’s decision, the proper inquiry is whether
the Appeals Council’s decision to deny benefits is supported by substantial evidence in the
record as a whole. See Ingram v. Astrue, 496 F.3d 1252, 1262-64 (11th Cir. 2007). The
plaintiff argues that this case should be remanded to the Commissioner because the additional
evidence is new and material. Of particular interest is medical documentation indicating that
Senn was diagnosed with “moderately severe SNHL in both ears” in January 2011. (R. 599.)
The medical evidence before the ALJ indicates Senn was involved in three accidents with
head injuries resulting in hearing loss, including a fall down a flight of stairs shortly before
the date of onset in January 2010, right ear otalgia in March 2010, and complaints of hearing
loss in September 2011; thus, it is arguable that the additional records provided to the

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Appeals Council are material in this case. See Ingram v. Astrue, 496 F.3d 1253 (11th Cir.
2007). Given Senn’s history of head injuries and medical records indicating problems with
both the right and left ears throughout the relevant time period, it is arguable that the
November 2011 diagnosis of hearing loss in both ears is material to a determination of
whether Senn suffered from hearing loss during the relevant time period in this case.
The Commissioner argues that evidence indicating that Senn suffers from hearing loss
does not establish a severe impairment because the medical records indicate that a hearing
specialist recommended hearing aids and that he “loved” a demonstration of them. (Doc. No.
15, Def’s Br. p. 9.) The evidentiary materials indicate Senn is unable to afford treatment.
On November 17, 2011, medical personnel at Hearing Associates of Dothan noted:
[Patient] seen to discuss hearing aids. He was seen in Dr. Charlton’s
office and has a moderately severe SNHL in both ears. [Patient] was in
a car accident and is disabled. He is not able to work and suffers
memory loss. He sees Dr. Malik for neurology. Demo of Aleras was
performed and patient loved them. He seemed very excited about them.
Levels of technology were discussed and patient wanted to proceed
with the mid-level. He was quoted $5839.65 for two. He and his wife
filled out the Care Credit application but it was denied. They will
discuss this with his family and see if a relative will sign as a coapplicant. They will contact us when they are ready to proceed.
(R. 599.) Senn’s mother also provided a letter to the Appeals Council stating that her family
cannot afford to pay for the hearing aids. (R. 255.) “While a remedial or controllable medical
condition is generally not disabling, when a ‘claimant cannot afford the prescribed treatment
and can find no way to obtain it, the condition that is disabling in fact continues to be
disabling in law.’” Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988) (quoting Taylor

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v. Bowen, 782 F.2d 1294, 1298 (5th Cir. 1986)). See also Belle v. Barnhart, 129 Fed. Appx.
558 (11th Cir. 2005) (“[I]f one’s disability could be cured by certain treatment, yet treatment
is not financially available, then a condition which is disabling in fact continues to be
disabling in law.”). The court also notes that the medical records do not clearly indicate the
extent of improvement with the hearing aids. See Seals v. Barnhart, 308 F.Supp.2d 1241,
1251 (N.D. Ala. 2004) (The “mere possibility that treatment would improve the plaintiff’s
condition is not sufficient to support a denial of benefits.”).
For these reasons, the court concludes that the Commissioner erred as a matter of law,
and that the case should be remanded for further proceedings regarding the severity of the
plaintiff’s hearing loss and its effect on his ability to work. The ALJ must consider every
impairment alleged by the plaintiff and determine whether the alleged impairments are
sufficiently severe – either singly or in combination – to create a disability. See Gibson v.
Heckler, 779 F.2d 619, 623 (11th Cir. 1986). In light of the ALJ’s failure to fully and fairly
consider the evidence in the record of the plaintiff’s hearing loss, the court concludes that the
ALJ failed to meet his burden in this regard. As a result of his failure to consider the
plaintiff’s hearing loss as a severe impairment, doubt is necessarily cast upon the ALJ’s
conclusion that the plaintiff is not disabled.
This court also concludes that the ALJ failed to resolve inconsistencies in the record
regarding Senn’s memory loss and concentration problems. The ALJ relies on the findings
of Dr. Saeeda Malik, a neurologist, when concluding that Senn has the residual functional
capacity to perform light work. The ALJ bases this conclusion on Dr. Malik’s findings
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during a mental status exam on September 19, 2011 that “claimant exhibited good fund of
knowledge and proper attention and concentration” and “unremarkable follow-up visits with
a treating neurologist.” (R. 31-32.) The ALJ, however, fails to reconcile this finding with
Dr. Malik’s notes during the same evaluation that Senn “appears confused,” that his
“concentration is poor,” and that a “14-system evaluation is remarkable for headache,
confusion, and memory impairment.” (R. 580-81.) He also fails to reconcile this finding with
Dr. Malik’s notes during follow-up visits on September 28, 2011, and October 12, 2011
indicating Senn’s “attention and concentration span is poor” and a “14-system evaluation is
remarkable for headache, confusion [and] memory impairment.” (R. 576-78.) When there
is a conflict, inconsistency, or ambiguity in the record, the ALJ has an obligation to resolve
the conflict, giving specific reasons supported by the evidence as to why he accepted or
rejected an opinion regarding the plaintiff’s capacity for work. When relying on Dr. Malik’s
notation that the mental status exam indicated Senn has a good fund of knowledge and proper
concentration as a basis for concluding Senn is able to perform light work, the ALJ failed to
reconcile this determination with Dr. Malik’s findings that Senn appears to suffer from
confusion, memory loss, and poor concentration. The ALJ is not free to simply ignore
medical evidence, nor may he pick and choose between the records selecting those portions
which support his ultimate conclusion without articulating specific, well supported reasons
for crediting some evidence while discrediting other evidence. Marbury v. Sullivan, 957 F.2d
837, 840-41 (11th Cir. 1992). On remand, the court suggests that the ALJ resolve
inconsistencies in the medical evidence regarding Senn’s memory loss.
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V. Conclusion
Accordingly, this case will be reversed and remanded to the Commissioner for further
proceedings consistent with this opinion.

Done this 31st day of July, 2013.

/s/Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE

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