Jones v. Berryhill
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable Ronald A. Guzman on 7/19/2018: The Court finds that the ALJ improperly evaluated plaintiff's residual functional capacity. Therefore, the Court grants plaintiff's motion for summary judgment, reverses the Commissioner's decision, and remands this case for further proceedings consistent with this Memorandum Opinion and Order. Civil case terminated. Mailed notice(is, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JEANETTE JONES,
Plaintiff,
v.
NANCY A. BERRYHILL, Deputy
Commissioner for Operations, performing
the duties and functions not reserved to
the Commissioner of Social Security,
Defendant.
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No. 17 C 1828
Judge Ronald A. Guzmán
MEMORANDUM OPINION AND ORDER
Plaintiff, Jeanette Jones, filed this action for judicial review of the Social Security
Administration Commissioner’s decision denying her application for benefits. For the reasons
explained below, the Court reverses the Commissioner’s decision and remands this case for
further proceedings.
BACKGROUND
Plaintiff applied for disability insurance benefits and supplemental security income
benefits in April 2013, alleging a disability onset date of May 23, 2012. Her applications were
denied initially and on reconsideration, and she requested a hearing. An Administrative Law
Judge (“ALJ”) conducted a hearing on October 29, 2015 and heard the testimony of plaintiff and
a vocational expert.
(R. 34-79, Tr.)
On November 24, 2015, the ALJ denied plaintiff’s
applications. (R. 17-33.) The Appeals Council denied review on January 23, 2017 (R. 1-3),
leaving the ALJ’s decision as the final decision of the Commissioner, reviewable by this Court
under 42 U.S.C. § 405(g). See Summers v. Berryhill, 864 F.3d 523, 526 (7th Cir. 2017).
DISCUSSION
The reviewing court may enter a judgment “affirming, modifying, or reversing” the final
decision of the Commissioner, “with or without remanding the cause for a rehearing.” 42 U.S.C.
§ 405(g). The Court’s task is “limited to determining whether the ALJ’s factual findings are
supported by substantial evidence”; it may not reweigh evidence, resolve conflicts in the record,
decide questions of credibility, or, in general, substitute its own judgment for that of the
Commissioner.
Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004); see also Campbell v.
Astrue, 627 F.3d 299, 306 (7th Cir. 2010) (“Our review is limited to the reasons articulated by
the ALJ in h[is] decision.”). Evidence is considered “substantial” if a reasonable person would
accept it as adequate to support the conclusion. Young, 362 F.3d at 1001. In rendering a
decision, the ALJ “must build a logical bridge from the evidence to his conclusion, but he need
not provide a complete written evaluation of every piece of testimony and evidence.” Pepper v.
Colvin, 712 F.3d 351, 362 (7th Cir. 2013).
Although the Court’s standard of review is
deferential, it is “not entirely uncritical,” and the case must be remanded where the decision
“lacks evidentiary support or is so poorly articulated as to prevent meaningful review.” Steele v.
Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).
The Social Security regulations prescribe a five-part sequential test for determining
whether a claimant is disabled. See 20 C.F.R. § 404.1520(a)(4). The Commissioner must
consider whether: (1) the claimant has performed any substantial gainful activity during the
period for which she claims disability; (2) if not, whether she has a severe impairment or
combination of impairments; (3) if so, whether her impairment meets or equals an impairment
listed in the regulations; (4) if not, whether she has the residual functional capacity to perform
her past relevant work; and (5) if not, whether she can perform any other work existing in
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significant numbers in the national economy. Id.; Skinner v. Astrue, 478 F.3d 836, 844 n.1 (7th
Cir. 2007). “The burden of proof is on the claimant through step four; only at step five does the
burden shift to the Commissioner.” Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000).
At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity
since the alleged onset date. (R. 22.) At step two, the ALJ determined that plaintiff has the
severe impairments of hearing loss and arthritis. (Id.) At step three, the ALJ found that plaintiff
does not have an impairment or combination of impairments that meets or medically equals the
severity of one of the listed impairments. (R. 23.) At step four, the ALJ determined that
plaintiff has the residual functional capacity (“RFC”) to “perform medium work as defined in 20
C.F.R. [§] 404.1567(c) and [§] 416.967(c) except she should avoid concentrated exposure to
excessive noise of more than moderate intensity and is limited to occupations that do not require
fine hearing capability.” (Id.) At the final step, the ALJ concluded that plaintiff is capable of
performing her past relevant work as a shipping and receiving clerk, housekeeping cleaner, and
laundry worker, and thus is not disabled. (R. 28.)
On appeal, plaintiff asserts that the ALJ’s decision is not supported by substantial
evidence because (1) the ALJ improperly evaluated plaintiff’s RFC by failing to account for all
evidence of limitations resulting from her hearing loss, failing to provide an evidentiary basis for
the two specific hearing limitations in the RFC, and failing to provide an evidentiary basis for
the conclusion that plaintiff can perform medium work; and (2) the ALJ improperly assessed the
credibility of plaintiff’s statements regarding the extent of her hearing loss and her inability to
pay for hearing aids.
As to plaintiff’s hearing, the ALJ’s RFC assessment states as follows in relevant part:
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At the hearing, [plaintiff] testified that she cannot hear in her left ear and has
some difficulty hearing with her right ear. She testified that with a soft-spoken
person, she must look directly at the person to understand that person. [Plaintiff]
testified that she cannot afford a hearing aid and that she could not find a hearing
care provider that would accept her insurance, County Care.
...
After careful consideration of the evidence, I find that [plaintiff’s] medically
determinable impairments could reasonably be expected to cause the alleged
symptoms; however, [plaintiff’s] statements concerning the intensity, persistence
and limiting effects of these symptoms are not entirely credible for the reasons
explained in this decision.
In terms of [plaintiff’s] alleged symptoms and limitations, the medical evidence
does not support any greater limitation to [plaintiff’s] work-related abilities than
those in the residual functional capacity set forth herein. Regarding [plaintiff’s]
hearing loss and associated alleged limitations, the medical records contain
testing results showing hearing loss. However, the most recent test results were
found to be unreliable by the audiologist who conducted the testing. In addition,
[plaintiff’s] treatment providers do not document observed hearing difficulties.
At a consultative examination in May 2013, [plaintiff] reported hearing loss in
the left ear with mild difficulty hearing people during a conversation and while
watching television. She denied wearing hearing aids, and she denied tinnitus.
Upon examination, she was able to understand conversational voice at six feet
distance with mild difficulty.
In August 2013, [plaintiff] visited a new primary care provider and requested a
referral for audiogram testing. [Plaintiff] underwent an audiological evaluation
later that month. She reported gradual hearing loss in both ears, greater in the
left ear and periodic tinnitus in both ears. Testing revealed moderately severe
sensorineural hearing loss in both ears. Speech discrimination testing revealed
good word recognition ability in both ears. The testing notes also state that a
hearing aid consultation should be scheduled upon receipt of medical clearance
and [plaintiff’s] interest.
[Plaintiff] consulted an ear, nose and throat specialist in October 2013.
Audiometry revealed moderately severe hearing loss in both ears. Speech
discrimination testing showed good word recognition ability in both ears. A
hearing aid referral was given.
At a consultative examination on March 11, 2014, [plaintiff] was unable to hear
at conversation level from 10 feet away. The consultative examiner frequently
needed to speak loudly and repeat questions. [Plaintiff] could not hear finger
rubbing in the left ear.
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In June 2015, at my request, [plaintiff] underwent a consultative audiologic
evaluation. At that time, she reported gradual hearing loss in her left ear and
bilateral constant tinnitus at night. Testing revealed severe hearing loss in the
right ear and severe to profound hearing loss in the left ear. Speech reception
thresholds were in poor agreement with the above findings, however. Word
recognition scores were excellent in the right ear and good in the left ear. The
audiologist concluded that the results of testing were not reliable due to the
inconsistent responses and results and did not provide an accurate representation
of [plaintiff’s] hearing sensitivity.
However, observed hearing difficulties, such as difficulty communicating with
her health care providers, were not documented by treating sources.
Thus, while the medical evidence indicates that [plaintiff] has the above severe
impairment, it does not indicate that this impairment is so severe as to prevent
[plaintiff] from performing all basic work activities. [Plaintiff’s] hearing loss
has been accommodated by precluding work that requires fine hearing capability
and by limiting exposure to noise of more than moderate intensity. The medical
evidence does not support any further limitations to [plaintiff’s] work-related
abilities due to hearing loss.
(R. 24-25 (citations omitted).) The ALJ went on to state that while he did not find plaintiff’s
claims or presentation regarding her hearing loss to be credible, for a number of stated reasons,
he gave “little weight” to the opinions of the state-agency medical consultants who opined that
plaintiff’s impairments were nonsevere.
(R. 26-27.)
The ALJ explained that while the
consultants did not credit the findings of the May 2013 and March 2014 examinations, he gave
greater weight to those findings when considering them in combination with the results of the
August 2013 audiological testing. (R. 27.) The ALJ concluded his assessment as to plaintiff’s
hearing with the following statement: “[T]he above residual functional capacity assessment is
supported by the medical findings, nature and frequency of treatment, the claimant’s activities,
opinion evidence and other factors discussed above. I have accommodated her impairments and
associated symptoms by limiting her to work at the medium exertional level with additional
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limitations as described above. To the extent that [plaintiff] alleges greater limitations, her
allegations are not fully credible.” (Id.)
Plaintiff argues that the ALJ erred by failing to adequately account for the October 2013
testing by the ear, nose, and throat specialist, which revealed moderately severe hearing loss in
both ears, as well as the June 2015 audiologic evaluation, which the ALJ requested and which
revealed severe hearing loss in the right ear and severe to profound hearing loss in the left ear,
but which the audiologist concluded was unreliable due to inconsistencies. The Court agrees.
Although the ALJ mentioned the October 2013 results when describing the evidence, he did not
explain how those testing results factored into his decision or whether they supported some
hearing limitations. As for the evaluation that was done at the ALJ’s behest, it appears as if the
ALJ implicitly rejected its results because they were unreliable, but it was error not to
substantively discuss those results, seek additional information, or explain why reliable results
were no longer necessary. See Collins v. Colvin, No. 12 C 1880, 2013 WL 5493683, at *2 (N.D.
Ill. Sept. 30, 2013) (“Once the ALJ decided to reject the findings of the consultative exam that
he had believed was necessary, he had a duty to seek out additional information or explain why
he no longer needed the additional opinion.”); Clayborne v. Astrue, No. 06 C 6380, 2007 WL
6123191, at *5-6 (N.D. Ill. Nov. 9, 2007) (where the claimant was recommended for a
consultative examination, the ALJ’s finding that its results were inconclusive obligated him to
order a second exam or explain why such an exam was no longer necessary).
Plaintiff argues that the ALJ also erred by failing to explain how the evidence of
plaintiff’s hearing loss led him to preclude work that requires fine hearing capability and avoids
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exposure to excessive noise of “more than moderate intensity.”1 The Court agrees that the ALJ
did not build a logical bridge between the evidence and these limitations. The ALJ found that
certain hearing test results (including the March 2014 examination, which revealed plaintiff
could not hear at conversation level from ten feet away) supported “some” hearing limitations.
But, as plaintiff points out, the ALJ did not identify any opinion or other evidence that
corresponds to the specific limitations imposed (and the Court found none) or otherwise explain
why they are warranted by the evidence. That was error. See Briscoe ex rel. Taylor v. Barnhart,
425 F.3d 345, 352 (7th Cir. 2005) (an ALJ’s failure to explain how he arrived at specific RFC
findings is reversible error). The RFC limitations do not appear to be based on any evidence as
to what functional limitations plaintiff’s hearing loss would be expected to cause. Although
administrative error is sometimes harmless, such that a court will not remand a case to the ALJ
for further proceedings where it is convinced that the ALJ will reach the same result, see
McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011), the Court is unable to conclude that these
errors were harmless. It is entirely possible that the results of a second consultative audiological
examination, consideration of all the evidence regarding plaintiff’s hearing loss, and further
development of vocational evidence would result in a more restricted RFC than was formulated.2
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On page 4 of the decision, the second limitation is referred to as “avoid[ing] concentrated
exposure to excessive noise of more than moderate intensity.” On page 6, it is phrased differently,
as “limiting exposure to noise of more than moderate intensity.” (R. 23, 25.)
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The Court is unpersuaded, however, by plaintiff’s assertion that the ALJ erred by failing to
include specific limitations on interactions with others and limitations on exposure to workplace
hazards. On this record, where little to no evidence was developed regarding what functional
limitations plaintiff’s hearing loss would be expected to cause, the Court cannot conclude that that
was error. Of course, such limitations may be appropriate if warranted by further evidentiary
development on remand.
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Plaintiff also contends that the ALJ failed to provide an evidentiary basis for the
conclusion that plaintiff can perform medium work. The Court agrees. As to plaintiff’s arthritis,
the ALJ discussed the evidence and concluded that while plaintiff “has the severe impairment of
arthritis, [the medical evidence] does not indicate that this impairment is so severe as to prevent
the claimant from performing all basic work activities.
The claimant’s arthritis has been
accommodated by limiting her to work at the medium exertional level. The medical evidence
does not support any further limitations to the claimant’s work-related abilities due to arthritis.”
(R. 26.) While the ALJ gave “little weight” to the opinion from plaintiff’s examining physician,
who opined that plaintiff has twenty percent reduced capacity to walk, bend, stand, stoop, sit,
turn, climb, push, and pull and that plaintiff can lift no more than ten pounds at a time, the ALJ
did not tie to any specific evidence his conclusion that plaintiff has the ability to perform
medium work. That error also warrants reversal and remand. See Taylor, 425 F.3d at 352;
Newell v. Astrue, 869 F. Supp. 2d 875, 891 (N.D. Ill. 2012).
Accordingly, this case will be remanded for further proceedings consistent with this
opinion. Plaintiff also contests the ALJ’s credibility finding regarding the extent of her hearing
loss and her inability to pay for hearing aids, and because that issue is intertwined with the
assessment of plaintiff’s RFC, it will have to be revisited on remand as well.3
CONCLUSION
The Court finds that the ALJ improperly evaluated plaintiff’s residual functional
capacity. Therefore, the Court grants plaintiff’s motion for summary judgment, reverses the
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The Court will note that there is no support for the ALJ’s assertion that “[i]t is not
reasonable that a public aid health care provider would have referred [plaintiff] to a hearing aid
provider that would not accept her insurance,” (R. 27), nor does it strike the Court as a conclusion
compelled by common sense.
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Commissioner’s decision, and remands this case for further proceedings consistent with this
Memorandum Opinion and Order.
DATE: July 19, 2018
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Ronald A. Guzmán
United States District Judge
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