Sawyer v. Commissioner of Social Security

Filing 24

MEMORANDUM DECISION & ORDER Petitioner's Petition for Review (Dkt. 1 ) is DENIED, the decision of the Commissioner is AFFIRMED, and this action is DISMISSED in its entirety, with prejudice. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

MARJORIE ANNE SAWYER,

Case No.: 1:16-cv-00275-REB

Petitioner,
MEMORANDUM DECISION AND
ORDER

vs.
NANCY A. BERRYHILL, Acting Commissioner
of Social Security,
Respondent.

Pending is Petitioner Marjorie A. Sawyer’s Petition for Review1 (Dkt. 1), appealing the
Social Security Administration’s final decision finding her not disabled and denying her claims
for disability insurance benefits and supplemental security income.2 See generally Pet. for
Review (Dkt. 1). This action is brought pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Having
carefully considered the record and otherwise being fully advised, the Court enters the following
Memorandum Decision and Order:
I. ADMINISTRATIVE PROCEEDINGS
On September 10, 2012, Marjorie A. Sawyer (“Petitioner”) protectively applied for Title
II disability and disability insurance benefits, as well as for Title XVI supplemental security
income. (AR 13.) Petitioner alleged disability beginning September 24, 2010. Id. Her claims

1

The pleading was titled and framed as a complaint, but is more properly treated as a
petition for review, as it seeks review of a final agency action. It will be referred to herein as a
petition for review.
2
Nancy A. Berryhill became the acting Commissioner of the Social Security
Administration on January 23, 2017. Pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure, Nancy A. Berryhill is substituted in as the Defendant in this suit. No further action
need be taken to continue this suit by reason of the last sentence of 42 U.S.C. § 405(g).

MEMORANDUM DECISION AND ORDER – 1

were denied initially on February 7, 2013 and then again on reconsideration on April 23, 2013.
Id. On May 14, 2013, Petitioner timely filed a Request for Hearing before an Administrative Law
Judge (“ALJ”). Id. On September 4, 2014, ALJ Jo Hoenninger held a hearing in Kennewick,
Washington during which Petitioner, represented by attorney Cory J. Brandt,3 appeared and
testified. Id. Impartial vocational expert Daniel R. Mckinney, Sr. also appeared and testified at
the hearing by telephone. Id.
On October 17, 2014, the ALJ issued a Decision denying Petitioner’s claim, concluding
that Petitioner was not disabled within the meaning of the Social Security Act. (AR 22.)
Petitioner timely requested review from the Appeals Council on or about October 24, 2014. (AR
9.) On April 27, 2016, the Appeals Council denied Petitioner’s Request for Review, making the
ALJ’s decision the final decision of the Commissioner of Social Security. (AR 1.)
Having exhausted her administrative remedies, Petitioner timely filed the instant action,
arguing that “[t]he conclusions and findings of fact of the [respondent] are not supported by
substantial evidence and are contrary to law and regulation.” Pet. for Review 1 (Dkt. 1). All of
Petitioner’s assignments of error relate to alleged deficiencies in how the ALJ considered, or
failed to consider, the severity of Petitioner’s hearing loss. See generally Pet’r’s Br. (Dkt. 17).
Petitioner asks the Court to reverse the ALJ’s decision or to remand for the SSA to hold a
supplemental hearing. Id. at 17.
II. STANDARD OF REVIEW
To be upheld, the Commissioner’s decision must be supported by substantial evidence
and based on proper legal standards. 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871 F.3d 664 (9th
Cir. 2017). Findings as to any question of fact, if supported by substantial evidence, are

3

Petitioner is represented in this petition by different counsel.

MEMORANDUM DECISION AND ORDER – 2

conclusive. 42 U.S.C. § 405(g). In other words, if there is substantial evidence to support the
ALJ’s factual decisions, they must be upheld, even when there is conflicting evidence. See
Treichler v. Comm’r of Social Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014).
“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); Ludwig v.
Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012). The standard requires more than a scintilla but less
than a preponderance (Trevizo, 871 F.3d at 674), and “does not mean a large or considerable
amount of evidence.” Pierce v. Underwood, 487 U.S. 552, 565 (1988).
With respect to questions of fact, the role of the Court is to review the record as a whole
to determine whether it contains evidence that would allow a reasonable mind to accept the
conclusions of the ALJ. Richardson, 402 U.S. at 401; see also Ludwig, 681 F.3d at 1051. The
ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and
resolving ambiguities. Treichler, 775 F.3d at 1098. Where the evidence is susceptible to more
than one rational interpretation, the reviewing court must uphold the ALJ’s findings if they are
supported by inferences reasonably drawn from the record. Ludwig, 681 F.3d at 1051. In such
cases, the reviewing court may not substitute its judgment or interpretation of the record for that
of the ALJ. Batson v. Comm’r of Social Sec., 359 F.3d 1190, 1196 (9th Cir. 2004).
With respect to questions of law, the ALJ’s decision must be based on proper legal
standards and will be reversed for legal error. Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir.
2015); Treichler, 775 F.3d at 1098. Considerable weight must be given to the ALJ’s construction
of the Social Security Act. See Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). However,
reviewing federal courts “will not rubber-stamp an administrative decision that is inconsistent

MEMORANDUM DECISION AND ORDER – 3

with the statutory mandate or that frustrates the congressional purpose underlying the statute.”
Smith v. Heckler, 820 F.2d 1093, 1094 (9th Cir. 1987).
III. DISCUSSION
A.

Sequential Process
In evaluating the evidence presented at an administrative hearing, the ALJ must follow a

sequential process in determining whether a person is disabled in general (20 C.F.R. §§
404.1520, 416.920) – or continues to be disabled (20 C.F.R. §§ 404.1594, 416.994) – within the
meaning of the Social Security Act.
The first step requires the ALJ to determine whether the claimant is engaged in
substantial gainful activity (“SGA”). 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). SGA is
work activity that is both substantial and gainful. 20 C.F.R. §§ 404.1572, 416.972. “Substantial
work activity” is work activity that involves doing significant physical or mental activities. 20
C.F.R. §§ 404.1572(a), 416.972(a). “Gainful work activity” is work that is usually done for pay
or profit, whether or not a profit is realized. 20 C.F.R. §§ 404.1572(b), 416.972(b). If the
claimant is engaged in SGA, disability benefits are denied regardless of her medical condition,
age, education, and work experience. 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant is
not engaged in SGA, the analysis proceeds to the second step. Here, the ALJ found that
Petitioner has not engaged in substantial gainful activity since September 24, 2010, the alleged
onset date. (AR 15.)
The second step requires the ALJ to determine whether the claimant has a medically
determinable impairment, or combination of impairments, that is severe and meets the duration
requirement. 20 C.F.R. § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination of
impairments is “severe” within the meaning of the Social Security Act if it significantly limits an

MEMORANDUM DECISION AND ORDER – 4

individual’s physical or mental ability to perform basic work activities. 20 C.F.R.
§§ 404.1520(c), 416.920(c). An impairment or combination of impairments is “not severe” when
medical and other evidence establishes only a slight abnormality or a combination of slight
abnormalities that cause no more than minimal limitation on an individual’s ability to work. SSR
96-3p, 1996 WL 374181 (July 2, 1996); see also 20 C.F.R. §§ 404.1521, 416.921. If the claimant
does not have a severe medically determinable impairment or combination of impairments,
disability benefits are denied. 20 C.F.R. §§ 404.1520(c), 416.920(c). Here, the ALJ found that
Petitioner has the following severe impairments: “mild cervical degenerative disc disease, left
hear [sic] hearing loss, and Crohn’s disease.” (AR 15.)
The third step requires the ALJ to determine the medical severity of any impairments;
that is, whether the claimant’s impairments meet or equal a listed impairment under 20 C.F.R.
Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the
answer is yes, the claimant is considered disabled under the Social Security Act and benefits are
awarded. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the claimant’s impairments neither meet nor
equal a listed impairment, her claim cannot be resolved at step three and the evaluation proceeds
to step four. 20 C.F.R. §§ 404.1520(e), 416.920(e). Here, the ALJ concluded that Petitioner does
not have an impairment or combination of impairments that meets or medically equals the
severity of one of the listed impairments. (AR 16.)
The fourth step of the evaluation process requires the ALJ to determine whether the
claimant’s residual functional capacity (“RFC”) is sufficient for the claimant to perform past
relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). An individual’s RFC is her
ability to do physical and mental work activities on a sustained basis despite limitations from her
impairments. 20 C.F.R. §§ 404.1545, 416.945. An individual’s past relevant work is work she

MEMORANDUM DECISION AND ORDER – 5

performed within the last 15 years or 15 years prior to the date that disability must be
established, as long as the work was substantial gainful activity and lasted long enough for the
claimant to learn to do the job. 20 C.F.R. §§ 404.1560(b), 404.1565, 416.960(b), 416.965. Here,
the ALJ determined that Petitioner has the RFC:
To perform light work as defined in 20 CFR 404.1567(b) and 416.967(b), with the
capacity to lift, carry, push and pull 20 pounds occasionally and 10 pounds
frequently, stand and walk 6 of 8 workday hours, and sit 6 of 8 workday hours. The
claimant is limited to frequent climbing of ramps and stairs, and occasional
climbing of ladders, ropes and scaffolds. The claimant is limited to occasional
crawling and frequent balancing, stooping, kneeling and crouching. The claimant
is limited to occasional overhead lifting with the non-dominant left upper extremity,
and limited to frequent handling with the non-dominant left upper extremity. The
claimant should not be exposed to loud industrial noise, and should avoid
concentrated exposure to vibration and hazards, such as unprotected heights and
exposed moving mechanical parts. The claimant can occasionally use a telephone.
The claimant needs close access to a restroom and additionally needs a five minute
break every hour in lieu of regular breaks.
(AR 16.) She further found that Petitioner is able to perform her past relevant work as a cashier,
café manager, and bartender/waitress. (AR 20.)
In the fifth and final step, if it has been established that a claimant can no longer perform
past relevant work because of his or her impairments, the burden shifts to the Commissioner to
show that the claimant retains the ability to do alternate work and to demonstrate that such
alternate work exists in significant numbers in the national economy. 20 C.F.R. §§
404.1520(a)(4)(v), 416.920(a)(4)(v), 404.1520(f), 416.920(f); see also Garrison v. Colvin, 759
F.3d 995, 1011 (9th Cir. 2014). If the claimant is able to do other work, she is not disabled; if the
claimant is not able to do other work and meets the duration requirement, she is disabled. Here,
because the ALJ found that Petitioner is able to perform her past relevant work as a cashier, café
manager, and bartender/waitress, the ALJ did not need to consider whether there are other jobs
that exist in significant numbers in the national economy that Petitioner can perform.

MEMORANDUM DECISION AND ORDER – 6

Nonetheless, the ALJ did undertake this consideration, finding that “[a]lthough the claimant is
capable of performing past relevant work, there are other jobs existing in the national economy
that she is also able to perform.” (AR 21.) The ALJ specifically found that Petitioner “would be
able to perform the requirements of representative occupations such as: . . . Small Product
Assembler II . . . [and] Garment Sorter.” (AR 21–22.) Based on the finding that Petitioner could
engage in past relevant work, the ALJ ultimately concluded that Petitioner “has not been under a
disability, as defined in the Social Security Act, from September 24, 2010, through the date of
this decision.” (AR 22.)
B.

Analysis
Petitioner argues the ALJ’s decision denying benefits is not supported by substantial

evidence and is contrary to law and regulation. Pet. for Review 1 (Dkt. 1). In broad terms,
Petitioner asserts that “the ALJ failed to understand the objective medical evidence of record
with regard to the Petitioner’s bilateral hearing loss. This misunderstanding resulted in several
reversible errors.” Pet’r’s Br. 4 (Dkt. 17). Petitioner’s entire argument is focused on the extent
and significance of her hearing loss. She does not dispute any other portion of the ALJ decision.
Petitioner’s arguments that the ALJ erred are closely related. First, she argues the ALJ
failed to evaluate the severity of her hearing loss under the proper regulation. Id. at 5–7. Next,
she argues the ALJ failed to recognize that her ability to discriminate speech is highly impaired.
Id. at 7–8. Following that, she asserts the ALJ failed to recognize she suffers from bilateral
hearing loss. Id. at 8–10. Next, she contends the ALJ erred by failing to find that her hearing is
not improved by using a hearing aid. Id. at 10–11. Additionally, she argues that her hearing loss
may medically equal the standard to prove disability based on hearing loss. Id. at 11–15. Finally,

MEMORANDUM DECISION AND ORDER – 7

she argues the ALJ erred in giving great weight to the opinion of a reviewing physician. Id. at
15–16.
Respondent addresses Petitioner’s individual arguments, and also notes, correctly, that
“Petitioner has not challenged the ALJ’s overall adverse credibility determination.” Respt’s’ Br.
5 (Dkt. 21). Respondent further notes, again correctly, that the ALJ stated, “the record contains
no opinion from a treating physician indicating the claimant is disabled or even has limitations
greater than those determined in this decision.” Id. (quoting AR 18). From this, Respondent
contends Petitioner cannot meet her burden to show harmful error, regardless of her arguments
on appeal, due to the lack of any opinion evidence in the record indicating Petitioner is disabled.
Id.
The Court disagrees. Petitioner contends that she may meet or medically equal the listed
impairment for hearing loss and is therefore disabled. Pet’r’s Br. 11–15 (Dkt. 17). The lack of
opinion evidence supporting Petitioner’s claim of disability does present a significant challenge
to her case on appeal. Nonetheless, it is conceivable that Petitioner could make the necessary
showing even without opinion evidence. Therefore, the Court declines to affirm the ALJ’s
decision based solely on the lack of opinion evidence. Instead, the Court will address each of
Petitioner’s arguments in turn below.
1.

The ALJ Did Not Err in Evaluating Whether the Severity of Petitioner’s Hearing
Loss Meets or Medically Equals a Listed Impairment.

Petitioner asserts that “[t]he ALJ noted . . . that the petitioner’s hearing loss did not meet
or equal the listing under Appendix 1, section 2.08.”4 Pet’r’s Br. 5 (Dkt. 17). She faults the ALJ

4

Petitioner implies that the ALJ expressly referenced Appendix 1, section 2.08. The ALJ
did not do so. Rather, the ALJ “considered the pertinent sections found within 20 CFR Part 404,
Subpart P, Appendix 1 of the Listings, placing special attention upon Sections 1.00, 2.00 and

MEMORANDUM DECISION AND ORDER – 8

for not discussing specific listings in detail before concluding Petitioner failed to meet or equal
any listings. Id. at 5. More specifically, Petitioner argues the ALJ was required to discuss
whether she met or equaled the listing set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1,
Section 2.08, addressing hearing impairments where hearing is not restorable by a hearing aid.
Id. Further, Petitioner argues that the record was not sufficiently complete for the ALJ to
undertake a proper evaluation under that section, so the case must be remanded for further
development. Id. at 5–6.
Respondent points out that Section 2.08 did not exist when the ALJ issued her decision in
October 2014. There was a Section 2.08 in a prior version of the regulations but it was removed
in 2010 at which time its substantive contents were modified and renumbered as Section 2.10.
See Revised Medical Criteria for Evaluating Hearing Loss, 75 Fed. Reg. 30,693 (June 2, 2010).
Nonetheless, as relevant here Section 2.10 is similar to former Section 2.08. Paragraph (A) of
Section 2.10 establishes thresholds for severe hearing impairment based on average conduction
hearing in air or bone. Paragraph (B) provides that a person is severely impaired if there is
medical evidence of “[a] word recognition score of 40 percent or less in the better ear determined
using a standardized list of phonetically balanced monosyllabic words (see 2.00B2e).” Section
2.00(B)(2)(e) provides:
Word recognition testing determines your ability to recognize a standardized list of
phonetically balanced monosyllabic words in the absence of any visual cues. This
testing must be performed in quiet. The list may be recorded or presented live, but
in either case the words should be presented at a level of amplification that will
measure your maximum ability to discriminate words, usually 35 to 40 dB above
your SRT. However, the amplification level used in the testing must be medically
appropriate, and you must be able to tolerate it. If you cannot be tested at 35 to 40
5.00.” (AR 16.) The ALJ then stated, “[d]espite the claimant’s impairments, the medical
evidence does not document listing-level severity, and no acceptable medical source has
mentioned findings equivalent in severity to the criteria of any listed impairment, individually or
in combination.” Id.
MEMORANDUM DECISION AND ORDER – 9

dB above your SRT, the person who performs the test should report your word
recognition testing score at your highest comfortable level of amplification.
“Word recognition testing” is also referred to as “speech discrimination,” which is the phrase
previously used in Section 2.08 and which Petitioner uses extensively. 20 C.F.R. § 404, Subpart
P, Appendix 1, § 102.00(B)(2)(f).
Here, Petitioner’s reliance on Section 2.08 is of no substance because that section was
removed in 2010. The Court will consider Petitioner’s arguments as made with respect to Section
2.10 instead of 2.08; however, even with that understanding the arguments have no merit.
Petitioner underwent various hearing tests on December 28, 2012. (AR 295–299.) She was
evaluated to have speech discrimination of 100% at 75 decibels. Id. at 298, 299. Thus, there is
medical evidence in the record that Petitioner’s word recognition score was far higher than the
40% threshold contained in Section 2.10(B). Whether or not these test results indicate, or do not
indicate, a severe impairment under Section 2.10(A) is an unaddressed question in terms of any
opinion evidence, and the Court will not interpret the data on its own. (AR 298.) Here, it is the
Petitioner’s burden to show that the evidence of record necessitated a more detailed analysis
under Section 2.10, and she has not met that burden.
Petitioner asserts that the medical record at issue includes raw test data that is not
translated into a form allowing it to be analyzed under Section 2.10. Pet’r’s Br. 6–7. But
Petitioner cites no medical opinion or evidence supporting her assertion that this “raw data” is
unfit for evaluation under Section 2.10. Such an assertion is not sensible, as the test results
appear straightforward and by their plain language include a “speech discrimination” score given
as a percentage. Even if there was an issue with the form of the data, it was nonetheless the
Petitioner’s burden in the first instance to ensure the record included the evidence necessary to
establish that she is disabled. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the

MEMORANDUM DECISION AND ORDER – 10

Petitioner did not introduce medical records or expert opinions demonstrating that she met or
equaled the official listing for hearing impairments, the deficiency is with her claim and not with
the ALJ’s analysis of it. This Court finds the ALJ did not err by failing to discuss any particular
listings, including Sections 2.08 or 2.10.
2.

Petitioner Has Not Shown Her Ability to Discriminate Speech Is Highly Impaired.

Petitioner’s next argument is that her “ability to discriminate speech is highly impaired.”
Pet’r’s Br. 7 (Dkt. 17). She asserts that her hearing did not improve with a hearing aid, but she
fails to cite record evidence for this proposition. Id. at 7–8. Nor is it clear she made this argument
before the ALJ, as the hearing transcript is silent on this issue and Petitioner has cited no
evidence that a hearing aid did not improve her hearing. Petitioner suggests that she “clearly does
not have the ability to discriminate speech without a hearing aid when she can only hear speech
at 100% when it is projected at 75 decibels with her one usable ear in a soundproof booth while
wearing headphones.” Id. at 8. She cites no evidence or medical opinion that interprets or
contextualizes the significance of these results.
Further, Petitioner’s arguments are not supported by the record. The ALJ cited
Petitioner’s medical records when finding that Petitioner’s “hearing is predicted to improve with
use of only a hearing aid.” (AR 19.) The ALJ further found that Petitioner’s ability to
discriminate speech was not impaired even without the use of a hearing aid. Id. The medical
records on which the ALJ relied also indicate Petitioner “[h]ears ok in right ear” and that she has
“[m]ild to moderate right [ear sensorineural hearing loss]” and “gradual [hearing] loss in the
right ear.” (AR 296, 297.) Moreover, the provider “[h]ighly recommend[ed] [a] hearing aid for
the right ear” and also noted that Petitioner “[m]ay benefit from cochlear implant in the future if
her hearing continues to decline in the right ear.” (AR 297.)

MEMORANDUM DECISION AND ORDER – 11

The medical records describing the extent of Petitioner’s right-ear hearing loss (which the
Court acknowledges are disputed by Petitioner herself but which are undisputed by other medical
records or medical opinions) constitute substantial evidence supporting the ALJ’s finding.
Petitioner’s present assertion to the contrary that her ability to discriminate speech is highly
impaired is not supported by the record. Absent medical evidence or a medical opinion in the
record supporting her assertion that 100% speech discrimination at 75 decibels is a severe
limitation, there is simply no basis upon which the ALJ’s decision on this issue could properly be
overturned.
3.

The ALJ Did Not Err in Failing to Recognize Petitioner Suffers From Bilateral
Hearing Loss.

Next, Petitioner argues that “[t]he ALJ failed to recognize the petitioner has bilateral
hearing loss.” Pet’r’s Br. 8 (Dkt. 17). She asserts that the combination of total hearing loss in her
left ear and partial but worsening hearing loss in her right ear results in significant overall
bilateral hearing loss. Id. at 8–10. From this, she contends the ALJ’s determination of her
residual functional capacity was erroneous because it did not account for the extent of hearing
loss in her right ear. Id. She argues “[t]he ALJ in this case completely missed the severity of the
loss in the Petitioner’s right ear, and in combination with the total loss in the left.” Id. at 9. She
also faults the ALJ for “fail[ing] to incorporate any [Medical Expert] testimony as to limitations
created by this type of bilateral hearing loss.” Id. Petitioner does not cite any record evidence of
medical records or opinions supporting her position, nor does she cite any case law supporting
her argument.
The ALJ found that Petitioner’s left ear hearing loss is a severe impairment, but she did
not find a severe impairment in Petitioner’s right ear hearing or in bilateral hearing. (AR 15.) Nor
did she find that a combination of Petitioner’s impairments, including hearing-related

MEMORANDUM DECISION AND ORDER – 12

impairments, meets or medically equals the severity of a listed impairment. (AR 16.) The ALJ
properly considered the extent of Petitioner’s hearing loss, including in each ear separately and
in both ears together. The record includes references that Petitioner “[h]ears ok in right ear” and
that she has “mild to moderate” hearing loss in her right ear. (AR 296, 297.) This evidence
supports the ALJ’s finding that Petitioner does not suffer from a severe impairment based on
either right-ear hearing loss or bilateral hearing loss. Absent record evidence showing the
medical significance of total hearing loss in one ear and mild to moderate hearing loss in the
other, the Court cannot assume the ALJ erred by failing to regard Petitioner’s right ear hearing
loss as more significant or severe.
Petitioner’s own testimony supports the ALJ’s findings. When asked to identify her
physical problems, Petitioner failed to mention any hearing issues. (AR 59.) Even if that was an
oversight on her part, when she was later asked directly about her hearing, she responded “I am
completely deaf in my left ear, so I can’t hear anything out of it. I can hear out of my right. It’s
starting to go. I read lips more. And I have to concentrate.” (AR 67 (emphasis added).) In light of
the substantial evidence regarding the minimal extent of Petitioner’s right-ear hearing loss, the
ALJ did not err by declining to seek input from a medical expert. Finally, the ALJ’s
determination of Petitioner’s residual functional capacity acknowledged that, due to her hearing
issues, she could only “occasionally use a telephone.” (AR 16.) Because Petitioner is completely
deaf in her left ear, the ALJ’s recognition of a limitation on telephone use necessarily means she
was aware of limitations with Petitioner’s right-ear hearing.
Plaintiff’s argument contains an understandable, from her perspective, disagreement with
the ALJ’s conclusions on this subject, but there is substantial evidence on which the ALJ relied
when considering Petitioner’s hearing loss. Therefore, in light of the competent record evidence,

MEMORANDUM DECISION AND ORDER – 13

undisputed by any medical source, the ALJ did not err in her findings related to the extent or
significance of Petitioner’s hearing loss in either or both ears.
4.

The ALJ Did Not Err in Failing to Make a Finding Regarding Whether a Hearing
Aid Would Improve Petitioner’s Hearing.

Petitioner faults the ALJ for failing to provide specific rationale for rejecting Petitioner’s
testimony that a hearing aid did not help her hear better. Pet’r’s Br. 10–11 (Dkt. 17). Petitioner
suggests that under Social Security Ruling (SSR) 16-3p the ALJ could not reject her testimony
without providing some analysis of that issue. Id. She also suggests that the record lacks any
evidence her hearing would have improved with a hearing aid. Id. at 10. Finally, she further
suggests that “the record remains that she did not obtain improvement” because the ALJ did not
dispute Petitioner’s claim to that effect. Id.
As an initial matter, this issue is not relevant to Petitioner’s request for relief in this
Court. Even if she were able to prove her hearing is not improved by a hearing aid, that fact
would not undermine the ALJ’s findings, supported by substantial evidence, that her right-ear
hearing loss is not a severe limitation. The ALJ found that “[Petitioner’s] hearing is predicted to
improve with use of only a hearing aid, but otherwise the claimant’s ability to discriminate
speech was not impaired even without the benefit of a hearing aide [sic].” (AR 19 (emphasis
added).) Whether a hearing aid improves her hearing is irrelevant in light of the ALJ’s finding
that even without a hearing aid she is still not impaired.
Moreover, SSR 16-3p addresses “evaluation of symptoms in disability claims.” SSR 163p at 1 (emphasis added). Per the SSR, a “symptom” is “the individual’s own description or
statement of his or her physical or mental impairment(s).” Id. at 2. In suggesting that the ALJ
erred under SSR 16-3p by failing to address the impact of a hearing aid on Petitioner, she argues
by implication that whether a hearing aid improves her hearing is a “symptom.” But this is

MEMORANDUM DECISION AND ORDER – 14

inaccurate. The “symptom” at issue is Petitioner’s hearing loss. As discussed above, the ALJ did
provide specific rationale for her finding that Petitioner does not suffer from right-ear hearing
loss. The ALJ quoted Petitioner’s audiology records that indicated Petitioner “[h]ears ok in right
ear” and that classified her right-ear hearing loss as “[m]ild to moderate.” (AR 19, 296, 297.)
SSR 16-3p has no application to Petitioner’s argument.
Separately, Petitioner presumes too much when asserting that the ALJ is bound by
Petitioner’s “statement that her hearing had not been improved in the past by use of a hearing aid
in the right ear.” Pet’r’s Br. 10 (Dkt. 17). First, the record discloses no such statement. Petitioner
cites to the same medical record that has already been cited extensively herein. Id. The first page
of that record includes a statement by the medical provider that Petitioner “has worn a hearing
aid in the right ear in the past but noted it was distracting.” (AR 295.) Nothing else on that page,
or on any other page of the record the Court reviewed, discusses Petitioner’s prior use of a
hearing aid. The statement on page 295 does not indicate that the hearing aid did not improve her
hearing; it merely “noted it was distracting.” Id. The Court will not read into this statement that
the hearing aid failed to improve her hearing, especially in light of other statements made in the
same record, e.g., “Highly recommend hearing aid for the right ear,” and “would benefit from a
hearing aid on the right side.” (AR 297, 299.) Common sense suggests that the medical provider5
would not have recommended a hearing aid if Petitioner had credibly claimed a prior hearing aid
was unhelpful. Of course, a hearing aid could be “distracting,” as noted in the medical record,
but nonetheless could still improve hearing.

5

It is not clear from this record, pp. 295–299, whether the statements were all made by a
single provider or were instead made by two providers. But this fact does not change the
analysis.
MEMORANDUM DECISION AND ORDER – 15

Second, an ALJ need not “dispute” any statements made by a claimant, and she neither
commits error nor adopts a claimant’s statement by not disputing it. The “[Social Security]
[A]gency operates essentially, and is intended so to do, as an adjudicator and not as an advocate
or adversary.” Richardson v. Perales, 402 U.S. 389, 403 (1971). Nor is it clear that whether
Petitioner’s hearing would improve with a hearing aid was an issue squarely before the ALJ here.
It was not brought up during the hearing. It was of only limited significance in the ALJ’s written
decision. For these reasons, Petitioner’s argument fails to justify overturning the ALJ’s decision.
5.

Petitioner Has Not Shown Her Hearing Loss May Medically Equal the Hearing
Loss Listing.

Petitioner next argues her hearing loss may suffice to establish disability based on the
listing for hearing loss. Pet’r’s Br. 11–15 (Dkt. 17). She repeats her earlier arguments (1) that the
record is incomplete because the audiology records are raw data rather than refined scores; (2)
that her hearing is not restorable by a hearing aid; and (3) that the ALJ erred by failing to
consider her right-ear hearing loss when determining her residual functional capacity. Id. at 14.
There is no citation to any medical opinion in the record that supports her position. As discussed
above, none of these arguments has merit. The ALJ’s decision was supported by substantial
evidence and none of Petitioner’s arguments in this section undermines the sufficiency of that
decision in any way.
6.

Petitioner Has Not Shown the ALJ Erred in Giving Great Weight to Dr.
Bernardez-Fu’s Opinion.

Petitioner takes issue with the ALJ having given great weight to the opinion of consulting
physician Dr. Robert Bernardez-Fu, M.D.6 Pet’r’s Br. 15–16. Petitioner asserts Dr. Bernardez-Fu
6

The ALJ referred to this consulting physician as Dr. “Bernarder-Fu” but his name is
properly spelled “Bernardez-Fu.” (AR 135, 136.) This opinion uses the correct spelling of his
name.

MEMORANDUM DECISION AND ORDER – 16

offered a “mistaken opinion” when stating Petitioner had “100% right ear speech
discrimination.” Id. at 15 (quoting AR 20). Petitioner challenges the accuracy of this statement,
asserting that “[b]ecause the Petitioner has at least ‘mild to moderate’ hearing loss in the right
ear, she cannot obviously have ‘100% right ear speech discrimination.’” Id. at 16. However,
Petitioner’s contention is this regard is not supported by any reference to a medical opinion in the
record.
As discussed previously, the medical records in this case clearly show 100% right-ear
speech discrimination at 75 decibels. (AR 298, 299.)7 Absent an opinion from a medical source
to the contrary, the Court cannot assume that “mild to moderate hearing loss” is mutually
inconsistent with “100% speech discrimination.” The administrative record discloses neither
medical records nor any medical opinion that supports an effective challenge on that basis.
Without such, Petitioner cannot prevail on this issue.
IV. CONCLUSION
Petitioner has not shown that the ALJ erred in failing to find that Petitioner’s right-ear
hearing loss constituted a severe impairment or that such hearing loss needed to be included in
the ALJ’s determination of her residual functional capacity. The ALJ’s decision was supported
by substantial evidence and Petitioner’s arguments do not call into question the sufficiency of
that evidence. Accordingly, the ALJ’s decision is affirmed.

7

Dr. Bernardez-Fu opined that Petitioner “has 100% speech discrimination in the right
ear at 45 dBHz.” (AR 134.) There is thus a discrepancy in the decibel level at which Petitioner
has 100% speech discrimination, given that the medical records Dr. Bernardez-Fu reviewed
indicate 75 rather than 45 decibels. (AR 298, 299.) Nonetheless, neither the ALJ nor Petitioner
referred to the decibel level Dr. Bernardez-Fu stated. Petitioner challenges only Dr. BernardezFu’s opinion of “100% speech discrimination,” which does not implicate the discrepancy with
the decibel level. That discrepancy is therefore not material and it will not be further discussed.
MEMORANDUM DECISION AND ORDER – 17

V. ORDER
Based on the foregoing, Petitioner’s Petition for Review (Dkt. 1) is DENIED, the
decision of the Commissioner is AFFIRMED, and this action is DISMISSED in its entirety,
with prejudice.
DATED: December 27, 2017

________________________
Honorable Ronald E. Bush
Chief U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER – 18