Bradley v. Colvin
Filing
18
MEMORANDUM OPINION re 1 appeal of an administrative law judge's denail by Marianna Greco Bradley. Signed by Magistrate Judge Martin C. Carlson on March 6, 2017. (kjn)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MARIANNA GRECO BRADLEY,
Plaintiff
v.
CAROLYN COLVIN,
Commissioner of Social Security,
Defendant
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Civil No. 3:15-CV-1882
(Magistrate Judge Carlson)
MEMORANDUM OPINION
I.
INTRODUCTION
Now pending before the Court is Marianna Greco’s appeal of an
administrative law judge’s denial of her application for Social Security Disability
benefits under Titles II and XVI of the Social Security Act.1 Ms. Greco applied for
Title II disability benefits on December 6, 2011, alleging a disability beginning on
July 1, 2010, on the basis of bilateral hearing loss. Ms. Greco’s application was
initially denied on March 20, 2012.
She appealed this initial decision and
requested a hearing before an ALJ. While this request was pending, Ms. Greco
protectively filed a Title XVI application for Supplemental Security Income
1
Although the plaintiff in this case is identified in the caption is Marianna Greco Bradley, she
was referred to throughout the administrative proceedings as Marianna Greco, and she has been
referred to as Marianna Greco in her briefs and other filings. We refer to her accordingly in this
opinion.
Disability Benefits on June 13, 2012. This application was consolidated with the
Title II application in the proceedings before the ALJ.
Multiple hearings were held on the Ms. Greco’s claims, after which the ALJ
issued an order denying benefits on May 8, 2014. Ms. Greco appealed the decision
and requested review by the Appeals Council. On August 3, 2015, the Appeals
Council denied this request for review. This litigation followed.
Ms. Greco has challenged the ALJ’s ruling in three principal respects, all of
which relate to the ALJ’s decision regarding Ms. Greco’s residual functional
capacity to perform certain work. First, she argues that the ALJ failed to consider
the specific testimony of the audiologist, particularly with respect to what the
plaintiff contends was quite limited testimony regarding any potential benefits that
hearing aids would provide, and also regarding the specific limitations and
restrictions that the plaintiff’s hearing loss would cause in an employment setting.
Second, the plaintiff takes issue with the ALJ’s given reasons for not finding
her testimony fully credible with respect to the extent of her hearing loss and its
limitations on her ability to perform daily functions and to engage in functions
relevant to her ability to work. The plaintiff contends that the ALJ placed undue
weight on the fact that the plaintiff had sought unemployment benefits during the
period in which Title II disability benefits were being claimed, and otherwise
provided inadequate justification for finding her testimony not fully credible,
2
particularly given other testimony from the plaintiff, her husband, and treating
records which show that she has profound hearing loss in both ears, and that she
has experienced severe side effects when attempting to use hearing aids.
Finally, and in the Court’s estimation most significantly, the plaintiff
maintains that the ALJ failed adequately to consider the testimony of the
vocational expert with respect to the likelihood that Ms. Greco would require
substantial accommodations to perform the jobs that he identified as those she
potentially could perform. Indeed, in response to questioning by counsel, the
vocational expert gave some answers that suggested Ms. Greco would require
substantial accommodation and that her hearing limitations would likely preclude
her from being seriously considered for any of the jobs identified. According to
Ms. Greco, this failure was significant, because agency rulings and guidance in this
field teach that it is error to consider whether a claimant can perform the identified
jobs only with accommodations that might be required under the Americans with
Disabilities Act. Moreover, the ALJ declined to address in any substantive fashion
this aspect of the vocational expert’s testimony, instead finding that the plaintiff
was capable of performing each of the three jobs that the vocational expert
identified as those that she could conceivably perform, and which existed in
sufficient numbers in both the regional and national economy.
3
The parties have consented to have this matter heard and decided by a
Magistrate Judge, and the appeal is fully briefed and is ripe for disposition. For the
reasons that follow, the Court agrees that the ALJ failed adequately to explain the
reasons why he found Ms. Greco less than credible regarding her subject
complaints, particularly with respect to Ms. Greco’s essentially unrebutted
testimony that the use of hearing aids has caused her severe side effects that may
diminish their efficacy. More significantly the Court finds that the ALJ failed to
develop the record with respect to critical testimony of the vocational expert that
was hesitant and qualified regarding Ms. Greco’s qualification for the jobs he
suggested she might be capable of performing, consequently the ALJ issued a
written decision that lacked sufficient support for the findings regarding Ms.
Greco’s residual functional capacity to perform those jobs. Accordingly, for the
reasons that follow the Court will order this matter remanded to the Commissioner
for further consideration of Ms. Greco’s claim for benefits.
II.
BACKGROUND
Marianna Greco was born on October 21, 1974. She was only 35-years-old
on the date of her alleged onset of disability, July 1, 2010, which makes her a
“younger person” under controlling regulations. 20 C.F.R. §§ 404.1563, 416.936
(defining a younger person as someone under the age of fifty, whose age will not
seriously affect her ability to adjust to other work). She has held prior employment
4
as a cook for approximately a year and a half, including the time she claims to have
been disabled. (Tr., Ex. 2E, page 3.) She also worked as a certified nurses’ aide in
a nursing home from 2007 until April 2011. (Id.) She stopped working in April
2011 because she was pregnant at the time and because she was having increasing
difficulty hearing the nurses around her because of a hearing impairment. The ALJ
found that although the plaintiff engaged in some work after her alleged disability
onset date, she was not engaged in work activity that rose to the level of substantial
gainful activity under prevailing regulations.2 (Tr. 17.) The record also reveals
that the plaintiff received unemployment benefits during the period of alleged
disability, between 2011 and 2012. (Tr. 17, 264-65.)
In January 2012, the plaintiff completed a Function Report in connection
with her disability applications. (Tr. 313-20.) In this report, the plaintiff reported
that she lived with her husband and children, took care of the family dog, tended to
her personal care needs, prepared meals daily, performed chores, shopped, and
managed her finances. (Tr. 313-15, 317.)
During the hearings held on her application, the plaintiff appeared and
testified, but required the assistance of her husband in order to understand and
respond to the ALJ’s questions.
(Tr. 39.)
2
The record reflects that upon
Years prior to her alleged onset date, the plaintiff also worked as a claims investigator for an
insurance company from 1999 to 2005. Between 1997 and 2004, she also worked as an
administrative assistant with an excavation company. (Tr. 21, 281.)
5
questioning from the ALJ, the claimant’s husband would repeat or rephrase the
ALJ’s questions so that she could understand and provide answers. Much of the
questioning centered on the plaintiff’s alleged basis for claiming disability, which
was the progressive worsening of her hearing in both ears, something that
developed in childhood and has persisted into her adult years, recently become
especially profound, particularly in her right ear.
On this score, it is undisputed that Ms. Greco has experienced profound
hearing losses over time. The plaintiff testified that she is no longer receiving
treatment for her binaural hearing loss because the doctors have told her that her
nerves are “shot”. (Tr. 45.) The plaintiff acknowledged that she used to wear
hearing aids, but testified that she experienced intolerable side effects when she
tried to use them, including severe headaches that would last throughout the day
and night, and which affected her ability to sleep. (Tr. 46.) She testified that she
would suffer headaches more than once a week, and that when she did so she
would also experience nausea to the point of nearly vomiting. (Tr. 46)
Ms. Greco’s husband, Michael Bradley, also testified at the hearing. He
testified that he and Ms. Greco had been married for ten years at the time of the
hearing, and that he had known her for approximately 13 years. (Tr. 47.) He
testified specifically and in greater detail about the problems he had observed when
his wife would try to use hearing aids. He testified that she had been using hearing
6
aids since childhood, but began experiencing problems with them as an adult. She
and her husband actually became concerned that the hearing aids were no longer
working, when at one point she claimed to be no longer hearing anything in one of
her ears, and was having trouble with the other as well. According to Mr. Bradley,
the problem with the hearing aids may have stemmed from the fact that they were
not working well in conjunction with one another, which is why she was
experiencing pain. He testified that despite their efforts to experiment with volume
levels and different types of hearing aids, it got to the point where they were not
working for his wife at all, and resulted in her suffering adverse side effects. (Tr.
47-48.)
Mr. Bradley testified that Ms. Greco can no longer attend school functions
and meet with her three children’s teachers. (Tr. 48.) He explained that his wife
had begun answering “yes” to many questions, tending to simply agree with what
someone was saying to her because she could not hear and was embarrassed. (Tr.
49.) By way of example, he testified to one incident during which his wife
answered “yes” to the question during a job interview with a nursing home about
whether she had ever harmed a resident because she could not understand what
was being asked of her. (Tr. 49-50.) Notwithstanding answers contained in Ms.
Greco’s Function Report, Mr. Bradley testified that he now pays all the bills, and is
responsible for all household responsibilities. He testified that his wife now has
7
difficulty driving and has fear of what people around her are doing or saying. (Tr.
51-52.)
In later testimony, Ms. Greco attested that her hearing has continued to
worsen since the initial proceeding before the ALJ.
(Tr. 79.)
She offered
testimony about her struggles in school that stemmed from her inability to hear her
teachers and because she experienced dizziness. (Tr. 80-81.) Ms. Greco testified
to being a poor student, something her school records corroborate. (Tr. 81, 358364.)
Dr. Sabina Scott testified as an examining audiologist about her functional
capacity assessment of Ms. Greco. (Tr. 55.) She completed a Medical Source
Statement prior to testifying on December 9, 2013.
In her Medical Source
Statement, dated July 14, 2013, Dr. Scott noted that Ms. Greco’s hearing loss
would make it difficult for Ms. Greco to work in any setting that required a keen
sense
of
hearing
and
communication,
one-on-one
communication
or
communication in groups, anywhere with background noise, anywhere where
people were not facing her, and on the telephone. (Tr. 431.) In response to
questioning from the ALJ, Dr. Scott offered the following opinion about Ms.
Greco’s likely residual functional capacity without the assistance of a hearing aid:
She will have difficulty in many different situations
without a hearing aid. Quiet, background noise, one-onone, groups, crowds, warning signals, alerting signals.
She’ll need everything turned up much louder. She’ll
8
probably have to ask people to repeat frequently.
Difficulty understanding, you know, all types of voices,
women, kids, whispering, louder speech, foreign accents,
non-speech sounds. It would be difficult for her to
engage in any kind of work requiring a lot of verbal or
social interaction and communication, complex
instructions. Ability to hear distinctions in speech or
sounds. A job that would require that would be very
difficult without hearing aids.
(Tr. 56.) In response to questioning by Ms. Greco’s counsel, Dr. Scott testified
further:
With this type and degree of hearing loss, I would expect
the Claimant to generally have difficulty hearing speech
clearly in the presence of background noise, in groups, or
in crowd situations. Without hearing aids, the Claimant
will struggle with both the volume and the clarity of
speech, particularly if the speaker is not facing her, has a
soft voice, or is whispering. Additionally, the Claimant
will have difficulty hearing speech over the phone and
may have trouble hearing certain non-speech sounds such
as the doorbell, equipment warning or alerting signals, a
turn signal in the car, or an ambulance siren with the
windows rolled up. She likely will have to ask people to
frequently repeat themselves or to speak louder,
especially if background noise is present. The Claimant
would likely need the volume on the TV or radio set at a
higher level as well. It may be difficult for the Claimant
to engage in jobs involving complex or frequent verbal
communication, interaction, or instructions, the ability to
hear fine distinctions in speech or sounds, jobs in which
hearing warning signals or alerts are required, and she
may struggle with jobs that are verbally demanding, and
jobs requiring telephone use.
9
(Tr. 436; see also Tr. 55-56.) Dr. Scott also testified that Mr. Bradley’s and Ms.
Greco’s testimony was consistent with the audiological records that she reviewed
and her own findings. (Tr. 58.)
Dr. Scott further observed that the extent of Ms. Greco’s hearing loss in her
right ear was so significant that it would not benefit from a hearing aid.3 (Tr. 53.)
In contrast, however, she testified that the left ear was a “very good hearing aid
candidate” and for that reason she expressed surprise that the hearing aid is “no
longer working, or giving her any benefit in the left ear.” (Tr. 53) Dr. Scott’s
testimony in this regard was somewhat limited, however, because of the fact that
Ms. Greco was no longer treating with any specialists, and, therefore, there were
no current testing data that might confirm or deny the benefits that she anticipated
Ms. Greco might realize from a newer hearing aid in her left ear. Nevertheless, at
a subsequent hearing, Dr. Scott did not retreat from her prior testimony about the
difficulties that she would expect Ms. Greco to face in many work situations,
noting in particular that “[j]obs that are reliant on hearing and communications are
Indeed, Dr. Scott testified affirmatively that the extent of the hearing loss in Ms. Greco’s right
ear was severe enough that it would qualify under the Special Senses and Speech Listings set
forth in 20 C.F.R. Part 404, Subpart P, Appendix 1. In the event a claimant’s impairment or
combination of impairments is of a severity to meet or medically equal the criteria of a listing
and meets the durational requirement, the claimant is deemed to be disabled at Step 3 of the 5part sequential analysis. Thus, it would appear that if the hearing loss in both of Ms. Greco’s
ears met or exceeded the degree of hearing loss identified in the right ear, she would have been
found disabled at Step 3.
3
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going to be very difficult with this hearing loss, I mean extremely challenging.”
(Tr. 71.)
Dr. Scott did continue to assert that if Ms. Greco had a hearing aid for her
left ear, her hearing would improve. (Tr. 71-72.) But even here Dr. Scott’s
testimony was nuanced and cautious. When the ALJ asked her to compare Ms.
Greco’s hearing ability with and without a hearing aid for the left ear she said:
That’s really hard to judge. I mean without a hearing aid
she, even in her better ear she has a severe, moderate to
severe hearing loss. With a hearing aid it’s hard to say
how much it would improve because a hearing aid
doesn’t make your hearing normal, but it would – if
people are talking to her on the left side, if she’s able to
face somebody and use visual cues, then I would expect
that she could definitely get by a lot better with a hearing
aid in her left ear than without one. She wouldn’t have to
ask people to repeat as often. It would still be
challenging to work in occupations involving a lot of
reliance on hearing, but she would do much better with a
good hearing aid in that ear, is what I would expect. It’s
hard for me to quantify in terms of like percentage.
(Tr. 72.)
Dr. Scott also recognized that although adverse reactions to hearing aid
usage such as dizziness and headaches were “very rare,” she tacitly acknowledged
that they may occur, and said that such complaints would necessarily be subjective
and difficult to measure objectively. (Tr. 73.) Furthermore, Dr. Scott testified that
even though Ms. Greco might be expected to have good results with the use of a
hearing aid in her left ear, she would still face a number of challenges, particularly
11
in environments with ambient noise, or where voices or sounds came to her from a
distance or from the right side. (Tr. 76.) Additionally, even with the use of a
hearing aid – and assuming that Ms. Greco could tolerate its use – Dr. Scott
testified that
I think it would be tough to [do] the kind of work where
you’re ask to attend a lot of meetings, ask questions,
interpret verbal instructions, carry out tasks that involve
having to follow – I mean anything that involves a heavy
amount of hearing and communication, even with a
hearing aid, is still going to be challenging.
(Tr. 76.)
Finally, Don Schader, a vocational expert (“VE”), testified at the hearing on
May 5, 2014. The VE opined that given the extent of her hearing loss, Ms. Greco
could not return to her prior employment. (Tr. 90.) When turning to the question
of whether the plaintiff could reasonably be expected to perform other jobs, the VE
and ALJ agreed that this presented “a tough case.” (Tr. 91.) The VE noted that he
was aware of individuals who were capable of performing work despite significant
hearing loss. However, he then admitted being unfamiliar with the Social Security
Administration’s position on whether potential workplace accommodations may be
factored into the residual functional capacity analysis. Moreover, he testified that
with some of the potential jobs he identified, a person like Ms. Greco “may not be
able to do every single job duty as described in the DOT.” (Tr. 91.) In response,
the ALJ said that he would rely upon the VE’s expertise. (Tr. 91.)
12
The VE came up with three potential jobs that Ms. Greco might fill: mail
room clerk, office helper, and cleaner/housekeeper. (Tr. 92-93.) Notably, in
response to the ALJ’s questions about the “degree of accommodation on how that
might affect these numbers at all”, the VE responded that he had found in his
professional experience and research that “people who have this level of hearing
loss, even if they can do the job, they have a hard time getting past the initial
interview.” (Tr. 94.) The ALJ did not explore this opinion in any way, other than
to ask “Well, once they have the job how do they usually do?” (Id.)
In response to this question, the VE offered a single example of an employee
who works in his office’s mailroom who “can hear some things”, but struggles
because there is a lot of communication taking place in that work environment.4
He then gave examples of a couple discrete tasks that this unidentified mailroom
clerk performs, including delivering staplers or office supplies, and collecting mail.
The VE also told the ALJ that even this office worker was accommodated and
apparently was hired under a specific regulation or accommodation for people with
significant hearing loss or other disability. (Tr. 94.) The ALJ inquired no further
about this single example, or about the kinds of accommodations that might be
In response to questions from Ms. Greco’s lawyer, the VE acknowledged that his professional
experience with respect to the availability of workplace accommodations for mail room clerks
and office workers was limited to this single employee working in his department. “But that’s
just . . . that’s one person, that’s one person in your office . . . so you can’t testify as to other
places, am I correct?” The VE acknowledged that he could not. (Tr. 97.)
4
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required for Ms. Greco specifically to fulfill the obligations of mail room clerk or
office helper or cleaner.
Ms. Greco’s lawyer did ask for further clarification, eliciting testimony from
the VE that an employee with hearing limitations such as those Ms. Greco suffers
from would need accommodations in each of the three jobs identified. (Tr. 95-96.)
The ALJ did not follow up on this or seek further clarification at the conclusion of
the hearing.
The ALJ issued a decision denying the plaintiff’s application for benefits on
May 8, 2014. In the decision, the ALJ found that Ms. Greco met the insured status
requirements for the Social Security Act through December 31, 2016, and found
that she had not engaged in substantial gainful activity since July 1, 2010, the
alleged onset date of disability. (Tr. 17.) The ALJ also found that the plaintiff
suffered from bilateral sensoineural hearing loss, which he found to be a severe
impairment, but at the next step did not find that her impairment meets or
medically equals the severity of a listed impairment in 20 C.F.R. 404, Subpart P,
Appendix 1. (Tr. 18-19.)
The ALJ next found that Ms. Greco retained the residual functional capacity
to perform a full range of work at all exertional levels, but found that she could not
engage in complex or frequent communication, interaction, or instructions. He
also noted that she could not hear fine distinctions in speech or sound, and is
14
incapable of hearing warning signals or alerts, and cannot engage in verbally
demanding tasks or telephone use. In making this finding, the ALJ concluded that
the evidence, including the testimony of the plaintiff and her husband, supported a
finding that her medically determinable impairments could reasonably be expected
to cause a host of symptoms, but he concluded that “the claimant’s statements
concerning the intensity, persistence, and limiting effects of these symptoms are
not fully credible.” (Tr. 20.) As support for this finding, the ALJ noted that the
claimant had engaged in some work and had received unemployment benefits after
the alleged disability onset date. He also noted that evidence in the record did not
support a finding that the plaintiff’s hearing condition had worsened over time, and
he referred to testimony from Dr. Scott that the use of a properly fitted hearing aid
would likely improve Ms. Greco’s hearing. (Tr. 21.)
The ALJ purported to give great weight to Dr. Scott’s testimony as to the
limitations on the plaintiff’s ability to engage in a variety of work, and hence found
that she was not able to engage in jobs involving “complex or frequent verbal
communication, interaction, and instructions.” (Tr. 21.) He also referred to Dr.
Scott’s opinion that Ms. Greco was unable to engage in jobs that would require her
to hear fine distinctions in speech or sound, or that would require her to hear
warnings or alerts, or that would be verbally demanding, or that would involve use
of a telephone. (Tr. 21.)
15
The ALJ then turned to the testimony from the VE, and accepted his opinion
that Ms. Greco could not engage in any of her past work. After reciting the legal
standards governing assessment of residual functional capacity, the ALJ purported
to accept the testimony of the VE that Ms. Greco remained capable of performing
the jobs of mail clerk, office helper, and cleaning/housekeeping. (Tr. 23.) The
ALJ did not discuss this aspect of VE’s testimony in any detail, and did not address
the VE’s opinion that given the extent of the plaintiff’s hearing loss, Ms. Greco
would likely require accommodations to perform the jobs he identified. Nor did
the ALJ address the VE’s testimony that Ms. Greco would have substantial
difficulty even making it past an interview were she to apply for such jobs, an
impediment to employment which rendered these potential jobs largely illusory.
(Tr. 23.)
III.
DISCUSSION
A.
Substantial Evidence Review – the Role of This Court
When reviewing the Commissioner’s final decision denying a claimant’s
application for benefits, this Court’s review is limited to the question of whether
the findings of the final decision-maker are supported by substantial evidence in
the record. See 42 U.S.C. §405(g); 42 U.S.C. §1383(c)(3); Johnson v. Comm’r of
Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008); Ficca v. Astrue, 901 F. Supp. 2d 533,
536 (M.D. Pa. 2012). Substantial evidence “does not mean a large or considerable
16
amount of evidence, but rather such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552,
565 (1988). Substantial evidence is less than a preponderance of the evidence but
more than a mere scintilla. Richardson v. Perales, 402 U.S. 389, 401 (1971). A
single piece of evidence is not substantial evidence if the ALJ ignores
countervailing evidence or fails to resolve a conflict created by the evidence.
Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). But in an adequately
developed factual record, substantial evidence may be “something less than the
weight of the evidence, and the possibility of drawing two inconsistent conclusions
from the evidence does not prevent [the ALJ’s decision] from being supported by
substantial evidence.” Consolo v. Fed. Maritime Comm’n, 383 U.S. 607, 620
(1966).
“In determining if the Commissioner’s decision is supported by substantial
evidence the court must scrutinize the record as a whole.” Leslie v. Barnhart, 304
F.Supp.2d 623, 627 (M.D. Pa. 2003). The question before this Court, therefore, is
not whether a plaintiff is disabled, but whether the Commissioner’s finding that she
is not disabled is supported by substantial evidence and was reached based upon a
correct application of the relevant law. See Arnold v. Colvin, No. 3:12-CV-02417,
2014 WL 940205, at *1 (M.D. Pa. Mar. 11, 2014)(“[I]t has been held that an ALJ’s
errors of law denote a lack of substantial evidence.”) (alterations omitted); Burton
17
v. Schweiker, 512 F. Supp. 913, 914 (W.D. Pa. 1981)(“The Secretary’s
determination as to the status of a claim requires the correct application of the law
to the facts.”); see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990)
(noting that the scope of review on legal matters is plenary); Ficca, 901 F. Supp. 2d
at 536 (“[T]he court has plenary review of all legal issues . . . .”).
B.
Initial Burdens of Proof , Persuasion and Articulation for the ALJ
To receive benefits under the Social Security Act by reason of disability, a
claimant must demonstrate an inability to “engage in any substantial gainful
activity by reason of any 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 twelve months.”
42 U.S.C.
§1382c(a)(3)(A); see also 20 C.F.R. §416.905(a). To satisfy this requirement, a
claimant must have a severe physical or mental impairment that makes it
impossible to do his or her previous work or any other substantial gainful activity
that exists in the national economy.
42 U.S.C. §1382c(a)(3)(B); 20 C.F.R.
§416.905(a).
In making this determination at the administrative level, the ALJ follows a
five-step sequential evaluation process.
20 C.F.R. §416.920(a).
Under this
process, the ALJ must sequentially determine: (1) whether the claimant is engaged
in substantial gainful activity; (2) whether the claimant has a severe impairment;
18
(3) whether the claimant’s impairment meets or equals a listed impairment; (4)
whether the claimant is able to do his or her past relevant work; and (5) whether
the claimant is able to do any other work, considering his or her age, education,
work experience and residual functional capacity (“RFC”).
20 C.F.R.
§416.920(a)(4).
Between steps three and four, the ALJ must also assess a claimant’s RFC.
RFC is defined as “that which an individual is still able to do despite the
limitations caused by his or her impairment(s).” Burnett v. Comm’r of Soc. Sec.,
220 F.3d 112, 121 (3d Cir. 2000) (citations omitted); see also 20 C.F.R.
§§416.920(e), 416.945(a)(1). In making this assessment, the ALJ considers all of
the claimant’s medically determinable impairments, including any non-severe
impairments identified by the ALJ at step two of his or her analysis. 20 C.F.R.
§416.945(a)(2).
At steps one through four, the claimant bears the initial burden of
demonstrating the existence of a medically determinable impairment that prevents
him or her in engaging in any of his or her past relevant work.
42 U.S.C.
§1382c(a)(3)(H)(i)(incorporating 42 U.S.C. §423(d)(5) by reference); 20 C.F.R.
§416.912; Mason, 994 F.2d at 1064.
Once this burden has been met by the claimant, it shifts to the Commissioner
at step five to show that jobs exist in significant number in the national economy
19
that the claimant could perform that are consistent with the claimant’s age,
education, work experience and RFC. 20 C.F.R. §416.912(f); Mason, 994 F.2d at
1064.
The ALJ’s disability determination must also meet certain basic substantive
requisites. Most significant among these legal benchmarks is a requirement that
the ALJ adequately explain the legal and factual basis for this disability
determination.
Thus, in order to facilitate review of the decision under the
substantial evidence standard, the ALJ's decision must be accompanied by "a clear
and satisfactory explication of the basis on which it rests." Cotter v. Harris, 642
F.2d 700, 704 (3d Cir. 1981). Conflicts in the evidence must be resolved and the
ALJ must indicate which evidence was accepted, which evidence was rejected, and
the reasons for rejecting certain evidence. Id. at 706-707. In addition, “[t]he ALJ
must indicate in his decision which evidence he has rejected and which he is
relying on as the basis for his finding.” Schaudeck v. Comm’r of Soc. Sec., 181 F.
3d 429, 433 (3d Cir. 1999).
C.
The ALJ’s Credibility Assessment Regarding the Plaintiff’s
Symptoms, Pain and Inability to Tolerate a Hearing Aid Lacks
Adequate Support and is Not Sufficiently Explained
The plaintiff initially challenges the ALJ’s decision with respect to his
treatment of Dr. Scott’s testimony regarding the likely benefit that hearing aids
20
would provide, and regarding his assessment of Ms. Greco’s credibility regarding
the extent of her symptoms.
As an initial matter, the ALJ’s decision failed adequately to address the
testimony of the plaintiff and her husband that she no longer used hearing aids
because she found that she was no longer receiving any benefit from them, and
because her asymmetrical hearing loss caused the use of a hearing aid in her left
ear to cause intolerable side effects including severe headaches, nausea, and sleep
loss. The ALJ did not reject this testimony explicitly, instead noting only that Dr.
Scott had testified that a hearing aid would likely help Ms. Greco’s left ear to some
degree, and finding generally that the plaintiff’s testimony about the extent of her
symptoms was not fully credible. The ALJ did not, however, make any finding
regarding Ms. Greco’s testimony concerning the adverse effects she claimed to
have experience by the use of hearing aids.
The ALJ also did not address in any way Dr. Scott’s admission that the use
of hearing aids can, in some cases, result in adverse side effects and that it is very
difficult to measure these complaints objectively. This omission is significant
because the issue of the plaintiff’s credibility with respect to her professed inability
to wear a hearing aid because of the profound side effects she had previously
experienced bears directly on Dr. Scott’s testimony about the likely benefit that a
hearing aid could provide. This is particularly important because although Dr.
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Scott testified that the plaintiff would likely realize some benefit to the hearing in
her left ear with the use of a hearing aid, she would nonetheless be subject to
extensive limitations in a work environment. The probative value of Dr. Scott’s
testimony thus turns in significant measure on whether the plaintiff could, in fact,
tolerate use of a hearing aid in light of the adverse side effects she claimed to have
suffered, something no witness disputed, which Dr. Scott acknowledged may occur
in some cases, and which the ALJ never explained in terms of whether he credited
any of the plaintiff’s testimony in this regard.
When considering the credibility of an individual’s subjective complaints of
pain and other symptoms, the ALJ is obliged to consider “the entire case record,
including the objective medical evidence, the individual’s own statements . . .,
statements and other information provided by treating or examining physicians or
psychologists and other persons about the symptoms and how they affect the
individual, and any other relevant evidence in the case record.” SSR 96-7, 1996
WL 374186 (S.S.A. July 2, 1996). In undertaking this inquiry, however, “[the]
ALJ must give serious consideration to a claimant’s subjective complaints . . .,
even where those complaints are not supported by objective evidence.” Mason v.
Shalala, 994 F.2d 1058, 1067 (3d Cir. 1993) (citing Ferguson v. Schweiker, 765
F.2d 31, 37 (3d Cir. 1985); see also SSR 96-7, 1996 WL 374186, at *1 (“An
individual’s statements about the intensity and persistence of pain or other
22
symptoms or about the effect the symptoms have on his . . . ability to work may
not be disregarded solely because they are not substantiated by objective medical
evidence.”).
In this case, although the ALJ made some limited findings in concluding that
Ms. Greco was not entirely credible regarding the extent of her limitations or
symptoms, these findings were especially limited and the factual support for them
was equally thin. Thus, to support this finding regarding Ms. Greco’s credibility,
the ALJ noted only that the claimant had engaged in some work and had received
unemployment benefits after the alleged disability onset date. He also noted that
evidence in the record did not support a finding that the plaintiff’s hearing
condition had worsened over time, and he referred to testimony from Dr. Scott that
the use of a properly fitted hearing aid would likely improve Ms. Greco’s hearing.
(Tr. 21.)
Yet, the ALJ did not mention in any way whether he had considered the
plaintiff’s subjective complaints about the use of a hearing aid, the one thing that
Dr. Scott said could be expected to provide some limited benefit to the hearing in
her left ear, even though Dr. Scott also recognized that in rare cases patients may
experience adverse side effects from using them. In the absence of any discussion
regarding this important consideration, and considering its omission in the context
of a decision that provided spare discussion as to the reasons the ALJ purportedly
23
found the plaintiff less than fully credible regarding her condition and symptoms,
the Court agrees with the plaintiff that the ALJ’s decision regarding his assessment
of Ms. Greco’s credibility is not adequately supported.
D.
The ALJ Failed to Address Meaningfully the Testimony of the VE
and to Address Disputes in the Record Regarding Ms. Greco’s
Ability to Perform the Functions of the Jobs Identified
Next, Ms. Greco challenges the ALJ’s treatment of the VE’s testimony
regarding her residual functional capacity and ability to engage in other jobs,
arguing that the ALJ failed to address in any meaningful way the nuances of the
VE’s testimony, qualifications in that opinion which strongly suggested that Ms.
Greco could not secure gainful employment. The Court agrees.
To read the ALJ’s decision regarding the three potential jobs that Ms. Greco
could be expected to perform given her residual functional capacity, one might be
led to believe that the VE had concluded that she could fulfill the requirements of
each of these jobs without further consideration or qualification. Review of the
VE’s testimony, however, reveals that it was qualified in numerous important
ways, and acknowledged that even in the three jobs that were identified, Ms. Greco
would likely (1) need accommodations to perform the job requirements and (2)
have little chance of ever obtaining such jobs because her hearing impairment
made it unlikely that she would ever get past an interview. Rather than addressing
either of these concerns at the hearing or in his written decision, the ALJ purported
24
to rely on the VE’s testimony as support for a finding that Ms. Greco could
manage to work in any of the three job fields identified given her residual
functional capacity.
By any reading, the VE’s opinion testimony was hesitant and qualified. Far
from unqualified, affirmative testimony that the plaintiff was capable of
performing each of the jobs identified, the VE raised caution flags throughout his
testimony. First, he agreed with the ALJ that this was a “tough case,” (Tr. 91.),
and noted at the outset that someone with Ms. Greco’s severe hearing loss would
likely require accommodation in order to perform the jobs identified, and that with
at least “some” of the three jobs, “the person may not be able to do every single job
duty as described in the DOT.” (Tr. 91.) Rather than address the VE’s apparent
uncertainty about whether Social Security guidelines permit consideration of the
availability of workplace accommodations, the ALJ informed the VE that the ALJ
would simply rely upon his “professional expertise” in identifying jobs that
someone with Ms. Greco’s limitations could be expected to perform.
In this regard, the ALJ specifically asked the VE, “Are there any other jobs
in the economy that this person could do with whatever reasonable
accommodations would be necessary?” (Tr. 94.) Without further explaining the
kinds of accommodations that would be required, the VE identified three jobs, and
did not offer any testimony to suggest that there were other jobs that she could also
25
fill. After the VE had identified the three jobs and discussed their availability in
the local, regional and national economy, the ALJ asked the VE to give
professional guidance “on the degree of accommodation on how that might affect
these numbers at all.” (Tr. 94.) Before even addressing that question, the VE
noted that even in such cases where a claimant with Ms. Greco’s level of hearing
loss could do some of the jobs, she would “have a hard time getting past the initial
interview.” (Tr. 94.) This was, in our view, a significant admission by the VE. It
suggested that this employment was, in fact, not available to Ms. Greco. Yet the
ALJ moved past this observation without comment, asking only how those
claimants who did manage to get past the interview fare in the jobs. The VE’s
testimony in response was both limited and important. Relying upon his own
experience, the VE identified only a single individual who worked in his office’s
mail room who did “some of the work of an office helper” and was, therefore,
“accommodated” in some way. He also appeared to testify that this worker in his
office was hired under a special hiring provision for applicants with special need or
disability.5 (Tr. 94.) The ALJ inquired no further into this area, instead turning the
matter over to the plaintiff’s counsel, who elicited testimony from the VE that the
The VE’s testimony on this point is somewhat unclear. In response to the ALJ’s question, “So
is it your estimate that she is accommodated in doing this job?” the VE answered, “I think she’s
accommodated. She also was hired under 55B which is a special –“. (Tr. 94.) The remainder of
the VE’s answer is unclear from the record, but it appears the ALJ understood him to mean that
there are “supports for people with such limitations.” (Tr. 94.)
5
26
jobs he identified would likely have to be modified in some way to accommodate
the plaintiff’s needs owing to her hearing impairment. (Tr. 95.)
The
VE’s’
testimony
regarding
the
likely
need
for
workplace
accommodation, and the discrepancies between the jobs as modified by
accommodation and their description the DOT required additional development at
the hearing, and further explanation in the ALJ’s written decision. The ALJ erred
by failing to develop the record as needed, and in failing to explain the basis for his
decision, which suggests only that he had accepted the VE’s testimony that Ms.
Greco could reasonably expected to perform the three jobs he identified, which is
simply not what is reflected in the VE’s cautious and uncertain testimony.
In similar circumstances, The Third Circuit Court of Appeals has been
“troubled . . . by the hesitation with which the VE identified the three possible
occupations for [a claimant].” Boone v. Barnhart, 353 F.3d 203, 209 (3d Cir.
2003); (citing Sias v. Sec’y of Health & Human Servs., 861 F.2d 475 (6th Cir.
1988) (“[I]f the expert is unable to testify without qualification about the jobs a
claimant can perform, the ALJ may not rely on his opinion.”)). In Boone, the court
of appeals was troubled by a conflict in the record between the VE’s testimony and
the job listings in the DOT, which worked to the disadvantage of the claimant, as it
did in this case. Id. The court found that the VE’s hesitation regarding the jobs
identified, their possible conflict with the DOT, “and the failure of the VE and the
27
ALJ to acknowledge (much less explain) this conflict” meant that “the VE’s
testimony does not by itself provide substantial evidence of a significant number of
jobs in the economy that [the claimant) can perform.” Id.6 The court of appeals
held that remand was appropriate because the VE’s testimony was inconsistent
with the DOT information “and because no other substantial evidence existed in
the record to determine the ALJ’s step 5 determination.” Rutherford v. Barnhart,
399 F.3d 546, 557 (3d Cir. 2005) (explaining Boone).
In Rutherford, the court of appeals distinguished Boone, but in doing so
provided instruction that is applicable to this case and the conflicts in the VE’s
testimony that went unresolved and unexplained. The court noted that SSR 00-4p
obligates an ALJ to develop the record during an adjudicative hearing where
conflict exists between a VE’s testimony and the DOT. That ruling provides:
When there is an apparent unresolved conflict between
VE . . . evidence and the DOT, the adjudicator must elicit
a reasonable explanation for the conflict before relying
on the VE . . . evidence to support a determination or
decision about whether the claimant is disabled. At the
hearings level, as part of the adjudicator’s duty to fully
develop the record, the adjudicator will inquire, on the
record, as to whether or not there is such consistency.
6
In Boone, the Third Circuit found that it needed to peruse the record to determine whether it
contained sufficient evidence to resolve the conflict. The Court finds that such an inquiry is not
possible on the record that was developed in the instant case, and the parties have not further
addressed or developed this issue in their briefs.
28
SSR 00-4p, 2000 WL 1898704 (S.S.A. Dec. 4, 2000). The court of appeals has
instructed that “inconsistencies between vocational expert testimony and DOT
information may run afoul of that more general requirement – and may warrant
reversal as a result – even when they do not come within the literal obligation
imposed by SSR 00-4p.” Rutherford, 399 F.3d at 557. The court also cautioned
that reversal may not be required in all cases where an ALJ has failed to address
such inconsistencies, such as where there existed other substantial evidence to
support the ALJ’s step-5 determination, or where the VE did not testify that the
jobs identified were an exhaustive list but were simply exemplars of the kinds of
work that a claimant could perform given her limitations. Id.; see also Jones v.
Barnhart, 364 F.3d 501, 506 (3d Cir. 2004).
In this case, the VE limited his testimony to three potential jobs, two of
which he acknowledged were substantially similar, and he explicitly testified that
“with some of these jobs the person may not be able to do every single job duty as
described in the DOT.” (Tr. 94.) The ALJ did not follow up on this testimony, or
elicit further explanation regarding these acknowledged discrepancies between the
job requirements and the need for accommodation. The failure to resolve this issue
at the hearing, or to address and explain it in any meaningful way in the ALJ’s
written decision warrants remand for further consideration, since the record would
not permit the Court to find that other substantial evidence in the record could
29
support a finding that Ms. Greco was capable of performing each of the three jobs
that the VE identified.
Remand is further appropriate because the testimony of the VE suggested
that Ms. Greco might only be capable of performing the jobs he identified if she
were granted certain accommodations. The ALJ did not address this issue in any
substantive way, or elicit substantial testimony from the VE regarding the kinds of
accommodations that would be needed or available; instead, the VE provided only
a single example of a person who worked in his office who was apparently offered
some modified accommodations that allowed her to perform some of the jobs of an
office worker. The ALJ did not inquire further into the types of accommodations
that Ms. Greco might require to perform any of the three jobs the VE identified.
Instead the record was simply left undeveloped, with even the VE’s own question
about the extent to which he could permissibly consider reasonable workplace
accommodations going unaddressed. Upon remand, this is also an area that should
be developed and considered in determining whether Ms. Greco meets the
requirements for being awarded benefits.
On remand, we caution that to the extent the VE considers the availability of
potential accommodations in order for Ms. Greco to be qualified for any of the jobs
he believed she could perform, the Supreme Court has explained that “when the
SSA determines whether an individual is disabled for SSDI purposes, it does not
30
take the possibility of ‘reasonable accommodation’ into account, nor need an
applicant refer to the possibility of reasonable accommodation when she applies
for SSDI.” Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 803 (1999)
(citing Memorandum from Daniel L. Skoler, Associate Comm’r for Hearings and
Appeals, SSA, to Administrative Appeals Judges, reprinted in 2 Social Security
Practice Guide, App. § 15C[9], pp. 15-401 to 15-402 (1998)) (original emphasis).
In summary, the Court thus finds that the ALJ’s summary and treatment of
the VE’s testimony is not supported in the actual record of that testimony, and the
ALJ consequently made findings regarding Ms. Greco’s residual functional
capacity to perform particular jobs that was not based upon substantial evidence.
These shortcomings in the decision to deny benefits cause the Court to find that it
was not based upon substantial evidence, and, therefore, it will be remanded for
further consideration that is in accord with prevailing Agency guidelines and the
law governing this field.
IV.
CONCLUSION
For the foregoing reasons, Ms. Greco’s appeal of the ALJ’s adverse decision
will be GRANTED and this matter remanded to the Commissioner for further
consideration of Ms. Greco’s claim for Title II benefits.
31
An Order consistent with this memorandum will issue separately.
/s/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
Dated: March 6, 2017
32
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