Barnitz v. Berryhill

Filing 26

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that this action is REVERSED AND REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further consideration in accordance with this Memorandum and Order.. Signed by Magistrate Judge Noelle C. Collins on 08/15/2018. (KCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

LISA BARNITZ o/b/o A.L.F.,
Plaintiff,
v.
NANCY A. BERRYHILL,
Deputy Commissioner of Operations,
Social Security Administration,
Defendant.

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Case No. 4:17-CV-01523-NCC

MEMORANDUM AND ORDER
This is an action under Title 42 U.S.C. § 405(g) for judicial review of the final decision
of the Commissioner to terminate the Supplemental Security Income (SSI) childhood disability
benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1383, et seq. of A.L.F.,
Plaintiff Liza Barnitz’s granddaughter (“Plaintiff”). Plaintiff has filed a brief in support of the
Complaint (Doc. 19), Defendant has filed a brief in support of the Answer (Doc. 24), and
Plaintiff has filed a reply brief (Doc. 25). The parties have consented to the jurisdiction of the
undersigned United States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c) (Doc. 14).
I. PROCEDURAL HISTORY
In an initial determination dated April 28, 2006, A.L.F., a child born in 2005, was found
disabled since January 30, 2006 on the basis that her impairment of deafness met a listing (Tr.
69-86). After conducting a continuing disability review, on May 4, 2015, A.L.F. was notified
that she was found to be no longer disabled as of May 1, 2015 (Tr. 87-90). A.L.F. filed a request
for reconsideration which was denied on September 2, 2015 and A.L.F. filed a request for
hearing (Tr. 93, 119-21, 122). After a hearing, by decision dated May 3, 2016, the ALJ

determined that A.L.F.’s disability ended as of May 1, 2015 (Tr. 26-38). On April 20, 2017, the
Appeals Council denied A.L.F.’s request for review (Tr. 3-8). As such, the ALJ’s decision
stands as the final decision of the Commissioner.
II. DECISION OF THE ALJ
The ALJ determined that the comparison point decision (“CPD”), the most recent
favorable medical decision finding that A.L.F. was disabled, is the determination dated April 28,
2006 (Tr. 29). At the time of the CPD, A.L.F. had the medically determinable impairment of
deafness (Id.). This impairment was found to meet section 102.08A of 20 C.F.R. Part 404,
Subpart P, Appendix 1 (Id.). 1 The ALJ found that medical improvement occurred as of May 1,
2015 (Id.). The ALJ further found that since May 1, 2015, the impairments of A.L.F., a school
age-child,2 have not met or equaled the severity of any listing nor have they functionally equaled
a listing (Tr. 30, 38). As such, the ALJ determined that the A.L.F.’s disability ended as of May
1, 2015 and A.L.F. has not become disabled against since that date (Tr. 38).
III. LEGAL STANDARD
The Social Security Administration has prescribed a three-step sequential evaluation for
making a periodic review of a child’s eligibility for disability benefits. 20 C.F.R. § 416.994a(b).
First, the ALJ must determine if there has been any “medical improvement” in the child’s
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In relevant part, the Listing reads:

A. For children below 5 years of age at time of adjudication, inability to hear air conduction
thresholds at an average of 40 decibels (db) hearing level or greater in the better ear . . . .
20 C.F.R. § 404, Subpart P, App. 1, 102.08A (hereinafter “Listing 102.08A”)
Effective August 2, 2010, the Social Security Administration removed Listing 102.08 and added
Listing 102.10 (Hearing loss not treated with cochlear implantation) and Listing 102.11 (Hearing
loss treated with cochlear implantation). See Bush v. Colvin, No. CIV.A. WGC-11-588, 2014
WL 1023376, at *2 (D. Md. Mar. 14, 2014) (noting the change).
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A school-age child is between 6 and 12 years of age. See 20 C.F.R. § 416.926a.
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condition. 20 C.F.R. § 416.994a(b)(1). Medical improvement is defined as “any decrease in the
medical severity of [the child’s] impairment(s) which was present at the time of the most recent
favorable decision that [the child] w[as] disabled or continued to be disabled . . . based on
changes (improvement) in the symptoms, signs, or laboratory findings associated with [the
child’s] impairment(s).” 20 C.F.R. § 416.994a(c). Generally, if there has been no medical
improvement, the child continues to be disabled. 20 C.F.R. § 416.994a(b)(1).
Second, if there has been medical improvement, the ALJ must determine whether the
impairment(s) that was considered at the time of the most recent favorable determination or
decision still meets or equals the severity of the listed impairment it met or equaled at that time.
20 C.F.R. § 416.994a(b)(2). If the impairment does, the child’s disability will be found to
continue unless exceptions not applicable in this case apply. Id. If the impairment does not, the
sequential evaluation will proceed to the next step. Id.
Third, the ALJ must determined whether the child is currently disabled under the rules
for determining eligibility in initial disability claims for children. 20 C.F.R. § 416.994a(b)(3).
In determining whether an SSI claimant under the age of 18 is under a disability, a three-step
sequential evaluation process is used which is comparable to the five-step sequential evaluation
process utilized for adults. 20 C.F.R. § 416.924(a). If a claimant fails to meet the criteria at any
step in the evaluation of disability, the process ends and the claimant is determined to be not
disabled.” Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting Eichelberger v.
Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)).
First, the child cannot be engaged in “substantial gainful activity” to qualify for benefits.
20 C.F.R. § 416.924(b). Second, the child must have a “severe impairment.” 20 C.F.R. §

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416.924(c). Third, the ALJ must determine whether the child has an impairment that meets,
medically equals, or functionally equals in severity a listed impairment. 20 C.F.R. § 416.924(d).
When determining functional limitations, 20 C.F.R. § 416.926a(a) provides that where a severe
impairment or combination of impairments does not meet or medically equal any listing, the
limitations will “functionally equal the listings” when the impairment(s) “result in ‘marked’
limitations in two domains of functioning or an ‘extreme’ limitation in one domain.” A
limitation is “marked” when it “interferes seriously with [a claimant’s] ability to independently
initiate, sustain, or complete activities.” 20 C.F.R. § 416.926a(e)(2). A limitation is “extreme”
when it “interferes very seriously with [a claimant’s] ability to independently initiate, sustain, or
complete activities.” 20 C.F.R. § 416.926a(e)(3). The ALJ considers how a claimant functions
in activities in the following six domains: “(i) Acquiring and Using Information; (ii) Attending
and Completing Tasks; (iii) Interacting and Relating to Others; (iv) Moving About and
Manipulating Objects; (v) Caring for Yourself; and (vi) Health and Physical Well-Being.” 20
C.F.R. § 416.926a(b)(1). Also, in assessing whether a claimant has “marked” or “extreme”
limitations, an ALJ must consider the functional limitations from all medically determinable
impairments, including any impairments that are not severe. 20 C.F.R. § 416.926a(a). Further,
the ALJ must consider the interactive and cumulative effects of the claimant's impairment or
multiple impairments in any affected domain. 20 C.F.R. § 416.926a(c).
Judicial review of the Commissioner’s final decision under 42 U.S.C. § 405(g) is limited
to whether there exists substantial evidence in the record as a whole to support the decision of
the Commissioner. Ramirez v. Barnard, 292 F.3d 576, 583 (8th Cir. 2002). “Substantial
evidence is less than a preponderance but . . . enough that a reasonable mind would find it
adequate to support the conclusion.” Milam v. Colvin, 794 F.3d 978, 983 (8th Cir. 2015)

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(internal quotations omitted). As long as there is substantial evidence in the record that supports
the Commissioner’s decision, the Court may not reverse it simply because substantial evidence
exists in the record that would have supported a contrary outcome, or because the Court would
have decided the case differently. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). In
other words, if after reviewing the record, it is possible to draw two inconsistent positions from
the evidence and one of those positions represents the findings of the ALJ, the decision of the
ALJ must be affirmed. Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000).
IV. DISCUSSION
In her appeal of the Commissioner’s decision, Plaintiff raises two issues. First, Plaintiff
asserts that the ALJ erred in failing to address the findings of Janet Vance, AuD, a pediatric
cochlear implant audiologist (Doc. 19 at 12-17). Second, Plaintiff argues that the ALJ erred in
failing to consider Listing 102.11 (Hearing loss treated with cochlear implantation) (Id. at 1821). See 20 C.F.R. § 404, Subpart P, App. 1, Part B2, 102.11 (hereinafter “Listing 102.11”).
Although Defendant asserts that the ALJ’s decision is supported by substantial evidence in the
record as a whole, Defendant does not respond to the specific assertions raised by Plaintiff in her
brief in support of the complaint (See Doc. 24). For the following reasons, because the ALJ
failed to address either Ms. Vance’s medical opinions or Listing 102.11, the Court will reverse
and remand this action.
A. The Opinion of Janet Vance, AuD
First, Plaintiff asserts that the ALJ erred in failing to address the findings of Janet Vance,
AuD (“Ms. Vance”), a pediatric cochlear implant audiologist (Doc. 19 at 12-17). As a
preliminary matter, Ms. Vance is an “other medical source.” 20 C.F.R. § 416.913(d)2.
Accordingly, although information from Ms. Vance cannot establish the existence of a medically

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determinable impairment, “information from such other sources, may be based on special
knowledge of the individual and may provide insight into the severity of the impairment(s) and
how it affects the individual’s ability to function.” Social Security Ruling (SSR) 06-03P, 2006
WL 2329939, at *2 (Aug. 9, 2006) (hereinafter “SSR 06-03P”); 20 C.F.R. § 416.913(d). As
such, opinions from other medical sources, like audiologists, “are important and should be
evaluated on key issues such as impairment severity and functional effects, along with the other
relevant evidence in the file.” SSR 06-03P, 2006 WL 2329939. Under Eighth Circuit law, it
may even sometimes be appropriate for the opinion of an “other medical source” to outweigh the
opinion of a treating source, if the other source “has seen the individual more often than the
treating source and has provided better supporting evidence and a better explanation for his or
her opinion.” Sloan v. Astrue, 499 F.3d 883, 889 (8th Cir. 2007). In general, when weighing the
opinion of an “other medical source,” an ALJ should consider the length of time and frequency
of the claimant’s visits with the source; the consistency of the source’s opinion with other
evidence; the evidence and explanations supporting the source’s opinion; the source’s specialty;
and “[a]ny other factors that tend to support or refute the opinion.” Id.
Here, A.L.F. initiated treatment with Ms. Vance in 2013 for regular visits to adjust
A.L.F.’s cochlear implants (Tr. 212). In two similar letters, one dated June 2, 2015 (Tr. 376-77)
and the other dated January 5, 2016 (Tr. 396-97), Ms. Vance indicated that A.L.F. has bilateral
sensorineural hearing loss that is in “the profound hearing impaired range at both ears” (Tr. 376,
396). Ms. Vance continued by explaining that A.L.F. received a cochlear implant at her right ear
in September 2007 and an implant in her left ear in July 2007 with a revision in May 2011 (Tr.
376, 396). She noted that while A.L.F. is dependent on the implants for development of speech
and language as well as communication with others, what A.L.F. hears “is NOT perceived as

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normal hearing” (Tr. 376, 396 (emphasis in originals)). Ms. Vance clarified, “[w]hile she is able
to detect sounds within a normal/mild hearing loss range, she does not understand
speech/language as a normal hearing person does. The sound quality and clarity provided by the
prosthetic device is an electronic signal that is not equivalent to normal hearing or normal speech
understanding.” (Tr. 376, 396). Ms. Vance then provides the results for a hearing test indicating
that A.L.F. can only understand 44% of the speech in a multi-talking environment (Tr. 376, 397).
The Court finds the ALJ improperly disregarded the opinions of Ms. Vance. Although
the ALJ appears to have relied on Ms. Vance’s June 2015 letter regarding A.L.F.’s diagnosis, the
ALJ did not address the opinions or testing therein (See Tr. 31). Further, the ALJ did not
consider Ms. Vance’s second, January 2016 letter at all (See Tr. 26-38). Indeed, the ALJ only
addresses opinion evidence provided by two state agency medical consultants (Tr. 31). Failure
to address an opinion provided by an “other medical source” when, as the case is here, the
opinions may have had an effect on the outcome of the case and these opinions were the only
ones provided by an examining health practitioner, is an error sufficient to warrant remand. See
Neeson v. Colvin, No. 2:12-CV-51 SNLJ SPM, 2013 WL 5442911, at *11 (E.D. Mo. Sept. 30,
2013) (listing cases). Therefore, the Court will remand this action for the ALJ to properly, and
thoroughly, analyze Ms. Vance’s opinions.
B. Listing 102.11
Next, Plaintiff argues that the ALJ improperly failed to address Listing 102.11 (Doc. 19
at 18-21). The Social Security Administration’s Listing of Impairments describes physical and
mental impairments that the Commissioner considers severe enough to be disabling. 20 C.F.R. §
416.925. Listing 102.11 provides that a child is considered disabled as a result of her hearing
loss treated with cochlear implantation if, relevant to the current case, “[u]pon the attainment of

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age 5 or 1 year after initial implantation, whichever is later, a word recognition score of 60
percent or less determined using the HINT or HINT-C (see [sic] 102.00B3b).” Section
102.00B3b reads:
[W]e need word recognition testing performed with any age-appropriate version of the
Hearing in Noise Test (HINT) or the Hearing in Noise Test for Children (HINT–C) to
determine whether your impairment meets 102.11B. This testing must be conducted in
quiet in a sound field. Your implant must be functioning properly and adjusted to your
normal settings. The sentences should be presented at 60 dB HL (Hearing Level) and
without any visual cues.
20 C.F.R. § 404, Subpart P, App. 1, Part B1, 102.00B3b.
The Court finds that ALJ did not properly consider Listing 102.11. In the ALJ’s
decision, the ALJ twice indicates, “Since May 1, 2015, [A.L.F.’s] impairments have not met or
medically equaled the severity of any listing” (Tr. 30, 38). “The ALJ’s failure to identify and
analyze the appropriate listing, although error, may not by itself require reversal so long as the
record otherwise supports the ALJ’s overall conclusion.” Brown v. Colvin, 825 F.3d 936, 940
(8th Cir. 2016). However, it is not clear whether the ALJ considered the appropriate listing; the
ALJ’s decision is void of any mention of Listing 102.11. See Chunn v. Barnhart, 397 F.3d 667,
672 (8th Cir. 2005) (finding remand appropriate when it was unclear from the ALJ’s decision
whether he “even considered” whether the claimant met the requirements of the relevant listing).
Therefore, the Court will additionally remand this action for the ALJ to properly consider Listing
102.11.
V. CONCLUSION
For the reasons set forth above, the Court finds that the ALJ’s decision was not based on
substantial evidence in the record as a whole and should be reversed and remanded. On remand,
the ALJ is directed to consider Listing 102.11; review and weigh the opinion evidence from Ms.

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Vance; further develop the medical record if necessary; and then proceed through the sequential
evaluation process before issuing a new decision.
Accordingly,
IT IS HEREBY ORDERED that this action is REVERSED AND REMANDED to the
Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further consideration in
accordance with this Memorandum and Order.
A separate judgment shall be entered incorporating this Memorandum and Order.
Dated this 15th day of August, 2018.

/s/ Noelle C. Collins
NOELLE C. COLLINS
UNITED STATES MAGISTRATE JUDGE

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