Brown v. Social Security Administration
MEMORANDUM OPINION AND ORDER affirming the decision of the Commissioner. The case is dismissed, with prejudice, and the oral argument hearing scheduled for November 12, 2015, is canceled. Signed by Magistrate Judge Beth Deere on 7/20/2015. (ks)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CASE NO. 3:15CV00002-BD
CAROLYN W. COLVIN, Acting Commissioner,
Social Security Administration
MEMORANDUM OPINION AND ORDER
Plaintiff Timothy Brown appeals the final decision of the Commissioner of the
Social Security Administration denying his claims for disability insurance benefits. Both
parties have submitted appeal briefs and the case is ready for decision.1
The Court’s function on review is to determine whether the Commissioner’s
decision is supported by substantial evidence on the record as a whole and free of legal
error. Papesh v. Colvin, 786 F.3d 1126 (8th Cir. 2015); see also 42 U.S.C. § 405(g).
Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971);
Phillips v. Astrue, 671 F.3d 699, 702 (8th Cir. 2012). In assessing the substantiality of the
evidence, the Court has considered evidence that detracts from the Commissioner’s
decision as well as evidence that supports it.
On December 8, 2011, Mr. Brown protectively filed for disability insurance
benefits due to chronic obstructive pulmonary disease (“COPD”), bilateral hearing loss,
The parties have consented to the jurisdiction of the Magistrate Judge. (Docket
diabetes, and back pain. (SSA record at 178) Mr. Brown’s claims were denied initially
and upon reconsideration. At Mr. Brown’s request, an Administrative Law Judge
(“ALJ”) held a hearing on August 23, 2013, where Mr. Brown appeared with his lawyer.
At the hearing, the ALJ heard testimony from Mr. Brown and a vocational expert (“VE”).
(Id. at 44-91)
The ALJ issued a decision on January 10, 2014, finding that Mr. Brown was not
disabled under the Act. (Id. at 29-39) On December 22, 2014, the Appeals Council
denied Mr. Brown’s request for review, making the ALJ’s decision the Commissioner’s
final decision. (Id. at 1-4)
Mr. Brown, who was fifty-five years old at the time of the hearing, had a high
school education, and past relevant work experience as a outside sales rep, hardware
salesperson, and inside sales agent. (Id. at 48, 77)
The ALJ followed the familiar five-step evaluation process in determining that Mr.
Brown was not disabled.2 He found that Mr. Brown had not engaged in substantial
gainful activity since his alleged onset date of November 17, 2011, and had the following
severe impairments: hearing loss, diabetes, and asthma. (Id. at 31) The ALJ also found
Was the claimant engaged in substantial gainful activity? If not, did she have a
severe impairment? If so, did the impairment (or combination of impairments) meet or
equal a listed impairment? If not, did the impairment (or combination of impairments)
prevent the claimant from performing her past relevant work? If so, did the impairment
(or combination of impairments) prevent the claimant from performing any other jobs
available in significant numbers in the national economy? 20 C.F.R. § 404.1520(a)-(g).
that Mr. Brown did not have an impairment or combination of impairments meeting or
equaling an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.3 (Id. at 32)
According to the ALJ, Mr. Brown had the residual functional capacity (“RFC”) to
perform medium work that does not involve excessive exposure to dust, smoke, fumes,
and other pulmonary irritants. He was limited to face-to-face communication regarding
verbal skills, but had no limitations with writing, emailing, or texting. (Id. at 15) The VE
testified that an individual with those limitations could perform Mr. Brown’s past job as
an inside sales agent and could work as hand packager and dishwasher. (Id. at 78-79)
Accordingly, the ALJ determined that Mr. Brown could perform a significant number of
other jobs existing in the national economy and was not disabled.
Mr. Brown’s Arguments for Reversal
Mr. Brown argues that the Commissioner’s decision should be reversed because
the ALJ failed to properly consider his: (1) hearing loss; and (2) chronic diarrhea. Docket
Mr. Brown argues that the ALJ failed to consider the severity of his hearing loss.
Specifically, he argues that the ALJ erroneously failed to discuss listing 2.10. In support
of his contention that he met listing 2.10, Mr. Brown relies on a January 2012 audiogram
that “appears to meet part A, but the testing was of questionable reliability.” (Id.) Mr.
Brown admits that an April 2012 audiogram does not meet the listing criteria. He notes,
20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526.
however, that the reliability was “fair to poor” and argues that “at the very least [the ALJ]
should have considered listing 2.10, made a finding as to whether Brown meets that
listing, and explained the reasons for that finding.” (Id.)
It would have been helpful had the ALJ specifically discussed the listing, but the
lack of discussion is harmless because, based on the record as whole, there was
substantial evidence to support the ALJ’s determination. First, as noted, the April 2012
audiogram did not meet listing 2.10. Second, the ALJ discussed all of the medical
records dealing with the hearing loss, and noted only minimal treatment since April 2012.
Third, after the January 2012 exam, the doctor “recommended that the patient undergo a
trial period with amplification.” (Id. at 257) Mr. Brown testified at the hearing that he
had not used his hearing aids in over a year because he did not think they helped. (Id. at
66) “A failure to follow a recommended course of treatment . . . weighs against a
claimant’s credibility.” Guilliams v. Barnhart, 393 F.3d 798, 802 (8th Cir. 2005).
Additionally, there is nothing in the record to indicate that Mr. Brown attempted obtain
different hearing aids or alternative forms of amplification. Fourth, the ALJ observed Mr.
Brown’s ability to hear and respond during the hearing. Based on these observations and
Mr. Brown’s statements that he tried to read lips and was better with face-to-face
communication, the ALJ placed a face-to-face verbal communication limitation in the
While Mr. Brown might have difficulty with his hearing, there is nothing in the
record to support the proposition that his hearing loss prevented him from working.
Jones v. Chater, 86 F.3d 823, 826 (8th Cir. 1996) (“While pain may be disabling if it
precludes a claimant from engaging in any form of substantial gainful activity, the mere
fact that working may cause pain or discomfort does not mandate a finding of
Mr. Brown asserts that the ALJ erred by not considering his chronic diarrhea
severe and by not accounting for it in the RFC. This claim is without merit.
To support his opinion, the ALJ pointed out that Mr. Brown complained of
diarrhea to his primary care doctor only once – in October 2013. This was two months
after the hearing. Whether a claimant seeks regular medical treatment may be considered
by the ALJ when weighing the credibility of a claimant’s claims regarding the severity of
his impairments. Edwards v. Barnhart, 314 F.3d 964, 967 (8th Cir. 2003)
Additionally, although Mr. Brown mentioned chronic diarrhea at the hearing, he
did not list it on his list of impairments when filing for benefits. The fact that a claimant
does not allege an impairment in his application for benefits is “significant” and can be
considered when weighing the credibility of the claim. Dunahoo v. Apfel, 241 F.3d 1033,
1039 (8th Cir. 2001).
Finally, the records reflect minimal complaints to treating physicians regarding the
issues with diarrhea. Although Mr. Brown mentioned it at a visit or two, generally there
is no notation that diarrhea was causing an issue or that it was significant enough to
require Mr. Brown to request a medication change. The ALJ specifically addressed these
issues at the hearing, but little explanation was offered for the absence of diarrhea issues
in the medical records. (Tr. 53-55) The ALJ also noted that Mr. Brown was advised to
follow up with a gastroenterologist, but there is no evidence he did. (Tr. 36) The ALJ
properly concluded that Mr. Brown’s alleged chronic diarrhea was not disabling.
There is substantial evidence to support the Commissioner’s decision that Timothy
Brown was not disabled within the meaning of the Social Security Act during the
relevant time period. Therefore, the decision of the Commissioner must be, and hereby
is, affirmed. The case is dismissed, with prejudice, and the oral argument hearing
scheduled for November 12, 2015, is canceled.
IT IS SO ORDERED, this 20th day of July, 2015.
UNITED STATES MAGISTRATE JUDGE
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