Harrod v. Colvin

Filing 19

MEMORANDUM AND ORDER - The Clerk of the Court is directed to substitute Acting Commissioner of Social Security Nancy A. Berryhill as the defendant. The Commissioner's decision is affirmed. The plaintiff's complaint is dismissed. The parties shall bear their own costs. A separate judgment will be entered. Ordered by Judge John M. Gerrard. (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BARBARA ANN HARROD,
Plaintiff,

8:16-CV-441

vs.
MEMORANDUM AND ORDER
BERRYHILL,1

NANCY A.
Acting
Commissioner of the Social Security
Administration,
Defendant.
This matter is before the Court on the denial, initially and upon
reconsideration, of plaintiff Barbara Ann Harrod's application for disability
insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et
seq. and supplemental social security income benefits under Title XVI of the
Act, 42 U.S.C. § 1381 et seq. The Court has considered the parties' filings and
the

administrative

record.

For

the

reasons

discussed

below,

the

Commissioner's decision will be affirmed.
FACTUAL BACKGROUND
Harrod based her claim of disability on hearing loss and rheumatoid
arthritis, T40, but the issues on appeal relate almost exclusively to hearing
loss, so the Court's discussion of Harrod's medical history will focus on her
hearing. Harrod has a long history of hearing impairment. She had surgery
performed in 1983—bilateral tympanomastoidectomies—but her hearing
continued to decline. T44; T272. A series of hearing tests, apparently
1

Nancy A. Berryhill is now the Acting Commissioner of Social Security and will be

automatically substituted as a party pursuant to Fed. R. Civ. P. 25(d).

1

performed in association with Harrod's former employer, show profound
hearing loss in her right ear, and varying but severe hearing loss in her left
ear, as far back as November 2006. T252.
More recently, a hearing test in November 2011 showed a moderate to
severe hearing loss in Harrod's left ear, and profound hearing loss in her
right ear. T245. Her next annual test, in November 2012, resulted in the
same findings. T259-60; see T252. She was seen for a physical examination in
January 2013 because of cold symptoms, and her doctor observed that her left
ear was impacted with cerumen, and that the tympanic membrane in her
right ear appeared abnormal with history of trauma. T262-63. She was seen
again in March, complaining of a blocked ear, which she characterized as
"fullness" in her right ear. T264-65. Scarring of both tympanic membranes
was noted. T264-65.
After applying for disability benefits, T158-61, Harrod was seen for
another hearing test in September 2013. That test indicated deafness in
Harrod's right ear, and hearing loss in her left ear. T246. Specifically, the
audiometric evaluation revealed deafness in her right ear and moderate to
severe sloping sensorineural hearing loss in her left ear. T272. Speech
discrimination was 100 percent in her left ear, and her speech reception
threshold was 60 dB in her left ear. T272; see T275. She had 100 percent
word recognition in her left ear at 85 dB. T246. She denied any pain or
drainage in her ears, and reported no fullness or pressure. T272.
Harrod's doctor, Thomas Connely, M.D., completed a hearing and
speech impairment evaluation form, on which he noted tinnitus and
established hearing loss. T271. He also noted an "average air conduction
hearing threshold of 90 decibels or greater in the better ear" and an "average
bone conduction hearing threshold of 60 decibels or greater in the better ear."
2

T271. He noted the absence, however, of "[a] word recognition score of 40
percent or less in the better ear determined using a standardized list of
phonetically balanced monosyllabic words." T271. Connely also discussed
hearing aid amplification with Harrod for her left ear, suggesting that she
"would get significant benefit." T273.
In addition, two residual functional capacity evaluations were
performed, based on review of Harrod's medical records, by consulting
physicians Jerry Reed, M.D. and Steven Higgins, M.D. T68-72, T78-82. Both
found that Harrod had communicative limitations, with limited hearing in
both ears, and that Harrod should avoid even moderate noise exposure. T6872, T78-82.
Harrod testified that she could no longer work because when she
explained to employers that she was hard of hearing, "all the places wouldn't
hire [her] because [she] had to communicate with people and that's one
reason [she] was not able to find work." T41. But she had been working parttime, for 2½ hours per day 5 days per week, helping prepare and serve meals
at a senior citizens' center. T41.
She had gotten a hearing aid in August 2014. T44. She said she still
had difficulty hearing despite her hearing aid, and had tinnitus in her right
ear. T51. She still relied on reading lips to understand people, "90 percent."
T52. She had trouble understanding requests from supervisors and
coworkers, and had to ask them to repeat themselves. T52. But when asked if
the hearing aid had helped her at all, she said, "Oh, yes," and said that her
hearing was "[g]reatly better" with the hearing aid. T51. She had been able,
for the first time, to hear her cat meow. T51-52.
The administrative law judge (ALJ) presented the vocational expert
with the following hypothetical:
3

Let's assume, then, that we have someone such as Ms. Harrod,
someone of the same age, education, and past work history both
as to exertional as well as skill level, and then further that she
could lift up to 10 pounds on a frequent basis . . . 10 pounds on an
occasional basis, five pounds frequently, or anything below 10
pounds frequently, that in an eight-hour day she could sit for six
hours, stand for two hours, and has unlimited use of the
extremities, that she should be away from any type of loud noise,
that she should also be in an environment away from
concentrated fumes, [astringents], and away from exposure to
heights and open machinery.
T59-60. The vocational expert opined that such a person could do Harrod's
past relevant work as an assembler (assuming the use of earplugs), even if
she consistently missed 1 to 2 days a month. T60-61
PROCEDURAL BACKGROUND
Harrod applied for disability insurance benefits on July 2, 2013, when
she was 58 years old. T158-61, T171. Her claim was denied initially on
September 19, and upon reconsideration on January 21, 2014. T86-93.
Harrod appealed and requested a hearing from an ALJ. T104. The ALJ held a
hearing on April 16, 2015. T36. In a decision dated July 16, the ALJ found
that Harrod was not disabled as defined under 42 U.S.C. §§ 416(i) or 423(d),
and therefore not entitled to benefits. T22-31.
SEQUENTIAL ANALYSIS
Disability, for purposes of the Social Security Act, is defined as the
inability to engage in any substantial gainful activity by reason of any
4

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. 42 U.S.C. §§ 416(i) & 423(d).
To determine whether a claimant is entitled to disability benefits, the
ALJ performs a five-step sequential analysis. 20 C.F.R. § 404.1520(a)(4). At
step one, the claimant has the burden to establish that she has not engaged
in substantial gainful activity since her alleged disability onset date. Cuthrell
v. Astrue, 702 F.3d 1114, 1116 (8th Cir. 2013). If the claimant has engaged in
substantial gainful activity, she will be found not to be disabled; otherwise, at
step two, she has the burden to prove she has a medically determinable
physical or mental impairment or combination of impairments that
significantly limits her physical or mental ability to perform basic work
activities. Id.
At step three, if the claimant shows that her impairment meets or
equals a presumptively disabling impairment listed in the regulations, she is
automatically found disabled and is entitled to benefits. Id. Otherwise, the
analysis proceeds to step four. But first, the ALJ must determine the
claimant's residual functional capacity (RFC), which is used at steps four and
five. 20 C.F.R. § 404.1520(a)(4). A claimant's RFC is what she can do despite
the limitations caused by any mental or physical impairments. Toland v.
Colvin, 761 F.3d 931, 935 (8th Cir. 2014). At step four, the claimant has the
burden to prove she lacks the RFC to perform her past relevant work.
Cuthrell, 702 F.3d at 1116. If the claimant can still do her past relevant work,
she will be found not to be disabled; otherwise, at step five, the burden shifts
to the Commissioner to prove, considering the claimant's RFC, age,
education, and work experience, that there are other jobs in the national

5

economy the claimant can perform. Id.; Jones v. Astrue, 619 F.3d 963, 971
(8th Cir. 2010).
THE ALJ'S FINDINGS
At step one, the ALJ found that Harrod had not engaged in substantial
gainful activity since her alleged disability date of May 13, 2013. T24. At step
two, the ALJ found that Harrod had two severe impairments: rheumatoid
arthritis and hearing loss. T25. But at step three, the ALJ found that
Harrod's impairments did not meet or equal a presumptively disabling
impairment. T25. So, the ALJ determined Harrod's RFC as follows:
The claimant can lift 10 pounds on an occasional basis and
anything below 10 pounds frequently. In an 8-hour day, she can
sit for 6 hours and stand for 2 hours. The claimant has unlimited
use of her extremities. She should be away from any type of loud
noise. The claimant should also be in an environment where she
is away from concentrated fumes, and astringents. She needs to
be away from exposure to heights and open machinery. The
claimant needs to wear ear plugs if in very noisy conditions.
T25. Based on that RFC, at step four, the ALJ found that Harrod could
perform her past relevant work. T30. Accordingly, the ALJ found that Harrod
was not disabled. T30-31.
On July 22, 2016, the Appeals Council of the Social Security
Administration denied Harrod's request for review. T1. Harrod's complaint
(filing 1) seeks review of the ALJ's decision as the final decision of the
Commissioner under sentence four of 42 U.S.C. § 405(g).

6

STANDARD OF REVIEW
The Court reviews a denial of benefits by the Commissioner to
determine whether the denial is supported by substantial evidence on the
record as a whole. Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011) (citing
42 U.S.C. § 405(g)). Substantial evidence is less than a preponderance but is
enough that a reasonable mind would find it adequate to support the
conclusion. Id. The Court must consider evidence that both supports and
detracts from the ALJ's decision, and will not reverse an administrative
decision simply because some evidence may support the opposite conclusion.
Perkins v. Astrue, 648 F.3d 892, 897 (8th Cir. 2011). If, after reviewing the
record, the Court finds it is possible to draw two inconsistent positions from
the evidence and one of those positions represents the ALJ's findings, the
Court must affirm the ALJ's decision. Id.
DISCUSSION
Harrod presents two issues to the Court for review: that (1) the ALJ
erred in failing to account for all the limitations supported by the evidence
related to Harrod's hearing loss, and (2) the ALJ's credibility determination is
not supported by substantial evidence. Filing 14 at 1. The Court finds no
merit to either contention.
LIMITATIONS RELATED TO HEARING LOSS
Harrod begins by arguing that "[t]he ALJ found that Harrod’s hearing
loss was a severe impairment, yet he did not include any limitations that
actually indicated the extent to which Harrod was able to hear." Filing 14 at
7. So, she contends, "the RFC is not an accurate reflection of Harrod’s
maximum residual functional capacity and is not supported by substantial
evidence." Filing 14 at 7.
7

But Harrod does not explain, even now, what limitations she believes
should have been included. Nor could she make such an argument
persuasively, because there is no basis in the record for limitations beyond
those the ALJ employed. An ALJ determines a claimant's RFC based on all
the relevant evidence, including the medical records, observations of treating
physicians and others, and an individual's own description of her limitations.
Combs v. Berryhill, 878 F.3d 642, 646 (8th Cir. 2017). And because a
claimant's RFC is a medical question, an ALJ's assessment of it must be
supported by some medical evidence of the claimant's ability to function in
the workplace. Id.
"In the typical Social Security disability case, the administrative record
includes one or more opinions by the claimant's treating physician(s) as to the
impact of impairments on [her] RFC." Hensley v. Colvin, 829 F.3d 926, 932
(8th Cir. 2016). There were no such opinions here, at least with respect to
Harrod's hearing loss. But "[i]n the absence of medical opinion evidence,
medical records prepared by the most relevant treating physicians can
provide affirmative medical evidence supporting the

ALJ's residual

functional capacity findings." Id. (cleaned up).
The ALJ had those records in front of him—and they showed that while
Harrod's hearing loss had gotten somewhat worse between 2006 and 2013,
that decline was not precipitous. See T252. Harrod herself reported that her
hearing had "really started going downhill" after her surgery in 1983. T44.
But Harrod had maintained her past relevant work until 2013. T181. She
was, in fact, working part time at the time of the administrative hearing,
T41, and there is nothing to suggest that her ability to perform part-time but
not full-time work was related to hearing loss.

8

Moreover, all the medical evidence of Harrod's hearing loss preceded
her acquisition of a hearing aid—which, she said, had greatly benefited her.
T51. She did say that her hearing was still impaired, even with her hearing
aid—but there is nothing in the record to suggest that her ability to maintain
employment was limited by her self-reported need to ask her supervisors or
coworkers to repeat themselves. See T52.
Harrod also argues that "the ALJ improperly substituted his lay
opinion for that of a medical source by attempting to interpret the
audiometric testing on his own." Filing 14 at 8. Harrod points to the ALJ's
discussion of the audiometric testing, and suggests that "the ALJ relied on
his own—likely inaccurate—interpretation of this testing in an attempt to
minimize the severity of Harrod’s hearing loss." Filing 14 at 8.
But the Court is unsure what else the ALJ should have been expected
to rely on. Harrod is, in effect, arguing that the ALJ erred in relying on
evidence that Harrod herself offered. If, indeed, it had been error to consider
that evidence without an expert medical opinion to interpret it, then Harrod
invited the error by offering the evidence without such an opinion. But the
ALJ did not err. The ALJ described the evidence accurately, and the ALJ's
statement that Harrod "only" had moderate to severe sloping sensorineural
hearing loss of her left ear—Harrod's proof of the ALJ's misinterpretation of
the evidence—is easily read, in context, as contrasting her partial left ear
hearing loss with her total right ear hearing loss. See T28. Simply put,
Harrod cannot prove that the ALJ misinterpreted the evidence by pointing to
the ALJ's wholly accurate summary of the evidence.
In sum, any "limitation" the ALJ could have included in Harrod's RFC,
based on hearing loss, would have been sewn from whole cloth, and not
grounded in the evidence. Given the standard of review, the Court can say
9

that there is at least substantial evidence supporting the ALJ's decision not
to include such a limitation.
CREDIBILITY DETERMINATION
Harrod also challenges the ALJ's credibility determination, but on
relatively narrow grounds. Filing 14 at 10. The ALJ found that Harrod was
"not a fully credible witness," based on her daily activities and the "routine
and conservative" nature of her arthritic pain management regimen. T29-30.
And, the ALJ noted, she had presented no third-party corroboration of her
testimony, and had received unemployment benefits after her alleged date of
disability, "which mean[t] she was asserting that she was willing, able, and
ready to return to work." T30.
Harrod's argument is threefold, but her first two contentions can be
disposed of together. Harrod contends that the ALJ erred in relying on her
daily activities as part of an adverse credibility determination when they are
"inapplicable to the primary impairment that Harrod alleges makes her
disabled: her hearing loss." Filing 14 at 10. And, she says, the ALJ "did not
indicate what greater treatment Harrod could have sought or obtained for
her hearing loss such that her treatment history undermined the credibility
of her allegations regarding its severity." Filing 14 at 10-11.
But Harrod also based her disability claim on her rheumatoid arthritis.
See T41. Harrod's daily activities, and the limited treatment that her
condition apparently required, were obviously relevant to her claim that she
was disabled in part by arthritic pain. E.g. Spradling v. Chater, 126 F.3d
1072, 1075 (8th Cir. 1997). And the ALJ quite specifically explained that his
credibility determination was based on the fact that Harrod was, at times,
"not even taking over-the-counter medications to help alleviate her alleged
pain symptoms." T30. Nor is the Court aware of any authority suggesting
10

that an ALJ's credibility determination should be discretely made with
respect to each claimed impairment: when a witness's credibility is
impeached on one issue, it is entirely fair for the factfinder to question the
witness's testimony on other matters as well.
Finally, Harrod objects to the ALJ's reference to Harrod's receipt of
unemployment benefits as undermining her credibility. Filing 14 at 11. "[T]he
ALJ," she argues, "did not indicate whether the state in which Harrod resides
requires a certification that she can specifically work full-time or whether a
certification that she could return to part-time work would be sufficient."
Filing 14 at 11-12.
It

is,

however,

well-established

that

seeking

and

obtaining

unemployment benefits evinces a willingness and ability to work, which
contradicts a claim of disability. See Milam v. Colvin, 794 F.3d 978, 984 (8th
Cir. 2015); Smith v. Colvin, 756 F.3d 621, 625 (8th Cir. 2014). Nebraska law,
in fact, premises an unemployed individual's eligibility for benefits on the
individual's ability and availability for work. Neb. Rev. Stat. § 48-627(3)(a).
Applying for part-time work is only sufficient "if the majority of the weeks of
work in an individual's base period include part-time work," § 48-627(3)(c),
and that does not appear to have been the case here, T181-82. The ALJ did
not err in considering Harrod's receipt of unemployment benefits as relevant
to her credibility.
CONCLUSION
The Court finds no merit to Harrod's claimed errors. Accordingly, the
Commissioner's decision to deny benefits will be affirmed.

11

IT IS ORDERED:
1.

The Clerk of the Court is directed to substitute Acting
Commissioner of Social Security Nancy A. Berryhill as the
defendant.

2.

The Commissioner's decision is affirmed.

3.

The plaintiff's complaint is dismissed.

4.

The parties shall bear their own costs.

5.

A separate judgment will be entered.

Dated this 13th day of February, 2018.
BY THE COURT:

John M. Gerrard
United States District Judge

12