Bowles v. Berryhill
Filing
33
MEMORANDUM OPINION AND ORDER granting 25 MOTION by Claudia Winter Bowles to Alter or Amend Judgment; directing the 24 Judgment Order is VACATED and set aside; the final decision of the Commissioner is reversed; Plaintiff's request for remand is granted and this action is remanded to the Commissioner for further proceedings pursuant to 42 U.S.C. § 405(g), fourth sentence; and that this case be dismissed from the court's docket. Signed by Senior Judge John T. Copenhaver, Jr. on 12/28/2022. (cc: counsel of record; any unrepresented parties) (ts)
Case 2:17-cv-01282 Document 33 Filed 12/28/22 Page 1 of 30 PageID #: 609
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
CLAUDIA B.,
Plaintiff,
v.
Civil Action No. 2:17-cv-01282
KILOLO KIJAKAZI, Acting
Commissioner of the Social
Security Administration, 1
Defendant.
MEMORANDUM OPINION AND ORDER
Pending is plaintiff Claudia B.’s Federal Rule of
Civil Procedure 59(e) motion to alter or amend judgment entered
on March 12, 2018, filed April 4, 2018.
I.
ECF No. 25.
Procedural Background
Plaintiff instituted this action on February 16, 2017,
pursuant to 42 U.S.C. § 405(g), seeking judicial review of the
Commissioner’s final decision denying her application for
disability insurance benefits.
The action was referred to
United States Magistrate Judge Omar J. Aboulhosn for
The caption reflects that Acting Commissioner Kilolo Kijakazi
has been substituted pursuant to Federal Rule of Civil Procedure
25(d). The plaintiff’s name in the case caption has been edited
in accordance with this district’s requirements as set out in
Standing Order in re: Privacy in Social Security Opinions,
effective Oct. 31, 2022.
1
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consideration pursuant to 28 U.S.C. § 636(b)(1)(b) and the
standing order of this district.
The magistrate judge entered a
Proposed Findings and Recommendation (“PF&R”) on September 29,
2017, recommending that the court:
grant Plaintiff’s request for judgment on the
pleadings to the extent that she asks for remand for
further administrative proceedings in order to correct
the errors below, deny Defendant’s request to affirm
the decision of the Commissioner; reverse the final
decision of the Commissioner; and remand this matter
back to the Commissioner pursuant to the fourth
sentence of 42 U.S.C. § 405(g).
PF&R, ECF No. 19, at 1-2 (emphasis and citations omitted).
Thereafter, the Commissioner filed four objections on October
13, 2017, challenging the magistrate judge’s findings that: (1)
the administrative law judge (“ALJ”) failed to provide “good
reasons” for discounting certain opinions of Dr. Fatima Aziz,
one of the plaintiff’s treating physicians, regarding the impact
of the plaintiff’s hearing loss on her ability to perform her
past occupation as a preschool teacher; (2) the ALJ should have
recontacted Dr. Aziz before discounting his opinion; (3)
“persuasive contrary evidence” must exist in the administrative
record for an ALJ to reject a treating physician’s opinion; and
(4) substantial evidence did not support the ALJ’s determination
that the plaintiff was not disabled.
2
ECF No. 20.
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After considering these timely objections, the court
entered judgment in favor of the Commissioner on March 12, 2018.
ECF Nos. 23 and 24.
Specifically, the court noted the four
objections to the PF&R and addressed the ALJ’s decision to give
less weight to Dr. Aziz’s opinions against the backdrop of other
evidence in the record that supported the ALJ’s ultimate
conclusion that the plaintiff was not disabled.
7, 12-15.
ECF No. 23, at
In doing so, the court determined that the ALJ’s
conclusion was supported by substantial evidence, namely, that
which contradicted the opinions of Dr. Aziz.
II.
Id. at 12-15.
Rule 59(e)
Plaintiff’s memorandum in support of the pending
motion to alter or amend judgment contends that:
Although the Court properly acknowledged that the
Commissioner had “lodge[d] four objections to the
magistrate judge’s PF&R”, unfortunately, only the
first two of those objections, which focused on the
weight given to Dr. Aziz’s opinion, were addressed.
As a result, the original question presented by
[plaintiff] to the district court – whether the ALJ’s
RFC was supported by substantial evidence – was
missed, and therefore, not resolved when the Court
declined to adopt all aspects of the magistrate
judge’s PF&R based on only one of the two proposed
findings that supported the magistrate judge’s overall
recommendation for remand.
ECF No. 26, at 2.
The court’s analysis, in plaintiff’s view,
amounts to a clear error of law under the Federal Magistrates
3
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Act, 28 U.S.C. § 636, and Mathews v. Weber, 423 U.S. 261 (1976),
inasmuch as district judges retain the ultimate “responsibility
to make a final determination on the issues presented by []
plaintiff[s]” when Social Security cases are referred to
magistrate judges for the preparation of proposed findings and
recommendations.
Id.
Plaintiff proceeds to argue that the
magistrate judge’s substantial evidence analysis was correct and
“requests the Court to adopt those portions of the magistrate
judge’s PF&R not previously reached by the Court, grant
Plaintiff’s motion for reconsideration, and vacate its prior
decision, thereby granting plaintiff’s motion for summary
judgment and remanding this matter to the Commissioner for a
correction of the errors made below.”
Id. at 2-5.
The Commissioner filed a response on April 16, 2018,
arguing that plaintiff is inappropriately using Rule 59(e) to
rehash her prior substantial evidence arguments.
2.
ECF No. 27, at
Further, the Commissioner asserts that the court did, in
fact, consider the primary issue raised by the plaintiff and
addressed by the PF&R, i.e. whether the ALJ’s decision was
supported by substantial evidence.
Id. at 2-3.
“Rule 59(e) motions can be successful in only three
situations: ‘(1) to accommodate an intervening change in
controlling law; (2) to account for new evidence not available
4
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at trial; or (3) to correct a clear error of law or prevent
manifest injustice.’”
Zinkland v. Brown, 478 F.3d 634, 637 (4th
Cir. 2007) (quoting Ingle v. Yelton, 439 F.3d 191, 197 (4th
Cir.2006)).
“Rule 59(e) permits a court to alter or amend a
judgment, but it ‘may not be used to relitigate old matters, or
to raise arguments or present evidence that could have been
raised prior to the entry of judgment.’”
Exxon Shipping Co. v.
Baker, 554 U.S. 471, 485 n.5 (2008) (quoting 11 Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure §
2810.1 (2d ed. 1995)).
Plaintiff contends that the court committed a clear
error of law under the Federal Magistrates Act and Mathews
inasmuch as it did not address the entirety of the PF&R’s
substantial evidence analysis, which endorsed her position.
However, she points to no authority that supports this
proposition.
The only case she cites, Mathews, addressed
whether a district court’s general order referring a 42 U.S.C.
§ 405(g) Social Security action to a magistrate judge for the
preparation of nonbinding recommendations was authorized under
the Federal Magistrates Act.
Mathews, 423 U.S. at 263-65.
Supreme Court determined that this practice was clearly
appropriate, finding that:
5
The
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[t]he magistrate may do no more than propose a
recommendation, and neither § 636(b) nor the General
Order gives such recommendation presumptive weight.
The district judge is free to follow it or wholly to
ignore it, or, if he is not satisfied, he may conduct
the review in whole or in part anew. The authority—
and the responsibility—to make an informed, final
determination, we emphasize, remains with the judge.
Id. at 270-71.
Mathews’ relevance is not entirely clear, but,
if anything, the case accords with the court’s decision to
diverge from the conclusions of the PF&R.
It does not, in any
regard, suggest that the court committed a clear error of law
under the Federal Magistrates Act by undertaking a de novo
review of the issues presented in the parties’ briefing.
Nevertheless, while the court finds no error of law
under the Federal Magistrates Act in its decision to depart from
the analysis of the magistrate judge, it considers whether the
plaintiff has raised other meritorious grounds to alter or amend
the judgment.
Because Rule 59(e) allows a court to correct its
own errors, Pacific Ins. Co. v. Am. Nat’l Fire Ins. Co., 148
F.3d 396, 403 (4th Cir. 1998), the court addresses the
substantive contentions in the plaintiff’s memorandum in support
of the motion to alter or amend judgment.
6
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III. Substantial Evidence
In its prior opinion, incorporated here by reference,
this court considered whether the ALJ’s conclusion as to the
limiting effects of plaintiff’s impairment were supported by
substantial evidence in light of the ALJ’s decision to discount
certain unsupported pieces of opinion evidence from a treating
physician.
ECF No. 23.
In the motion to alter or amend
judgment, the plaintiff makes no argument that the analysis in
that order was clearly erroneous to the limited extent it goes,
but rather that it is incomplete.
See ECF No. 26 at 3-4.
The
court need not disturb the prior opinion in order to proceed in
supplementing the analysis therein.
Taken at its highest, the
plaintiff’s substantive argument on this motion is that,
notwithstanding the court’s prior opinion, the ALJ’s
determination of her residual functional capacity (“RFC”) was
still not supported by substantial evidence because it failed to
account for other conflicting record evidence when considering
her ability to perform past relevant work.
Here, following the prescribed procedure, the ALJ
found that the plaintiff’s hearing loss was a medically
determinable impairment and that “[r]egarding communication, she
would be limited to hearing from only one ear.”
Tr. 24-27.
ALJ proceeded to consider its effects on her RFC, ultimately
7
The
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determining that she retained the capacity for light work in
moderate noise environments.
On that basis, the ALJ found that
the plaintiff was capable of performing her past relevant work
as a teacher and preschool teacher because they did not require
performance of work-related activities precluded by her RFC.
Tr. 27.
On this motion, the plaintiff focuses her challenge on
the ALJ’s finding that she is capable of work in a moderate
noise environment.
In particular, the plaintiff contends that
in explaining his RFC conclusion the ALJ failed to account for
numerous allegedly consistent statements as to her difficulty
hearing in the workplace, as well as elements of the Vocational
Expert’s testimony.
ECF No. 26 at 2-4.
The court will consider
both objections in turn.
a. Legal Standard
Reviewing courts must uphold an ALJ’s findings where
they are supported by substantial evidence and reached by
applying the correct legal standard.
F.3d 650, 653 (4th Cir. 2005).
Johnson v. Barnhart, 434
“Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.”
(4th Cir. 1996).
Craig v. Chater, 76 F.3d 585, 589
On substantial evidence review, a court may
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not “re-weigh conflicting evidence, make credibility
determinations, or substitute [its] judgment for that of the
ALJ.”
Johnson, 434 F.3d at 653 (quoting Craig, 76 F.3d at 589).
At step four of the sequential disability evaluation
process under 20 C.F.R. § 404.1520, an ALJ must undertake a
“function-by-function analysis” of the claimant’s impairments to
determine her residual functional capacity (“RFC”).
v. Comm’r, 986 F.3d 377, 388 (4th Cir. 2021).
See Dowling
This involves
first determining whether the claimant has a medically
determinable impairment and then evaluating its limiting effects
on the claimant’s functioning.
187 (4th Cir. 2016).
Monroe v. Colvin, 826 F.3d 176,
“[A] proper RFC analysis has three
components: (1) evidence, (2) logical explanation, and (3)
conclusion.”
2019).
Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir.
The ALJ’s explanation must “build an accurate and
logical bridge from the evidence to [the] conclusion.”
826 F.3d at 189.
Monroe,
In this explanation, “there is no rigid
requirement that the ALJ specifically refer to every piece of
evidence in his decision,” Reid v. Comm’r, 769 F.3d 861, 865
(4th Cir. 2014), but he may not omit discussion of substantial
portions of the record.
See Thomas, 916 F.3d at 312.
9
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b. Plaintiff’s subjective statements
By reference to the magistrate judge’s discussion in
the PF&R, the plaintiff points to allegedly consistent record
evidence showing the impairments caused by her hearing loss,
both in her employment as a teacher and in the activities of
daily life.
Specifically, at her evidentiary hearing, the
plaintiff testified that she “was having trouble hearing [her
students]” and “couldn’t always hear what came over the
intercom.”
Tr. 48.
She “often times could not hear during
[faculty meetings].”
Id.
And she further testified: “My
inability to hear, I didn’t feel like I could keep a safe
classroom with my balance issues and with not being able to
hear. I can’t hear where an [sic] noise originates.”
Id.
Outside of the workplace, the plaintiff testified that
she can no longer go to movies, concerts, or small groups at
church, and when she meets with friends, they have to orient
themselves to one side and eliminate music and background noise
in order to chat.
Tr. 56.
She can only use a telephone on
speakerphone and avers that her “word recognition is horrible.”
Id.
To illustrate the interference of her hearing loss, the
plaintiff testified that she was once pulled over by a patrol
officer after failing to hear his siren.
Tr. 43.
On the day of
the hearing, the plaintiff testified that she struggled to
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understand directions from reception staff outside the hearing
room and had to request that the ALJ speak more slowly during
the proceedings.
Tr. 37, 56.
She later noted that the hearing
setting was very accommodating and did not have multiple people
talking at the same time.
Tr. 53.
In his decision, the ALJ found that “the claimant’s
statements concerning the intensity, persistence and limiting
effects of [her] symptoms are not entirely credible for the
reasons explained in this decision” and that “[t]he record does
not support the limitations alleged by the claimant and reveal
that she is not fully credibility [sic] regarding the severity
of her complaints.” 2
Tr. 25.
The ALJ’s decision cited the
following evidence in reaching the unfavorable determination
While previously focused on the “credibility” of the claimant’s
subjective statements, the Commissioner has clarified that the
evaluation of subjective evidence about the intensity and
persistence of symptoms in determining disability instead
requires that the adjudicator assess the consistency of such
statements with other record evidence. S.S.R. 16-3p
(superseding S.S.R. 96-7).
The court notes that the Commissioner’s revised policy
interpretation on this point was effective from the date of
March 28, 2016, which was subsequent to the entry of the ALJ’s
written opinion on October 27, 2015 but prior to the decision
becoming final on December 23, 2016 or the plaintiff filing her
complaint in this action for judicial review on February 16,
2017. Consistent with the present policy interpretation and the
language of the regulations, the court conducts its review with
reference to the record consistency, rather than the
credibility, of the plaintiff’s subjective statements about the
limiting effects of her hearing loss.
2
11
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regarding plaintiff’s subjective statements about her hearing
loss:
(1)
MRI tests performed in 2007, 2008, 2010, and 2013 showing
an intracanalicular enhancing small mass in the left ear,
the most recent of which showed no significant worsening
as compared to the prior tests (Tr. 366-91);
(2)
Notes from plaintiff’s visits with Dr. Wetmore, including
the results of audiogram testing showing “very minimal”
worsening of plaintiff’s hearing and an unchanged word
recognition score of 64 percent between 2010 and 2013, as
well as Wetmore’s review of the 2013 MRI results in which
he noted that the left ear intracanalicular tumor
appeared somewhat smaller than in previous tests (Tr.
298-302, 380-84);
(3)
Notes from plaintiff’s visits with Dr. Moore in which
Moore observed that plaintiff had a history of acoustic
neuroma, hearing loss, and vertigo, but that plaintiff’s
hearing was intact to conversation; 3
The ALJ’s decision references plaintiff’s visits to Moore on
December 1, 2014 and April 7, 2015. Tr. 25. However, the ALJ’s
citations in the decision refer to notes dated January 1, 2014
(hearing was “intact to conversational voice both ears”),
December 1, 2014 (hearing was “intact to conversation”), and
April 7, 2015 (hearing was “intact to conversation”). Tr. 25
(citing to Tr. 353, 361, 407). The ALJ’s decision did not cite
3
12
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(4)
Plaintiff’s absence of difficulties during the hearing,
including an ability to clearly hear what was said,
recognize words, and seek clarification on the meaning of
unfamiliar terms;
(5)
Plaintiff’s activities of daily living, like cooking,
quilting, driving, and performing household chores being
largely unaffected by her medical conditions;
(6)
The opinions of two State agency medical consultants who
completed Physical RFC Assessment forms on January 28,
2014 and April 11, 2014, finding that the plaintiff was
not disabled but had RFC limitations including, inter
alia, only light exertion and no concentrated exposure to
noise (Tr. 83-87, 96-100); and
(7)
The opinion of Dr. Aziz as to the potential for
plaintiff’s hearing to interfere with teaching (Tr. 344).
Tr. 25-26.
The court need not reiterate its prior findings about
the opinion of Dr. Aziz other than to affirm that the ALJ’s
attribution of little to no weight to such a speculative opinion
to Moore’s note from a visit on August 6, 2014, which indicated
that the plaintiff “[h]as problems with hearing” as well as that
the plaintiff’s hearing was “intact to conversation.” Tr. 358,
360.
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was not erroneous.
Of the remaining six evidentiary supports,
the MRI testing falls squarely within the definition of
objective medical evidence under 20 C.F.R. § 404.1529(c)(2).
Accordingly, if the MRI evidence is not consistent with the
plaintiff’s subjective statements about the limiting effects of
her hearing loss, it may be used to discount those subjective
statements, so long as it is not the singular basis for
discounting them.
See Lewis v. Berryhill, 858 F.3d 858, 866
(4th Cir. 2017) (subjective statements may not be discounted
solely on the basis of objective medical evidence).
The five other supports cited by the ALJ fall within
the category of “other evidence” under §404.1529(c)(4).
This
category is necessarily expansive and includes “any symptomrelated functional limitations and restrictions” reported by the
claimant, a treating or nontreating source, or other person, so
long as it “can reasonably be accepted as consistent with the
objective medical evidence and other evidence.”
20 C.F.R. §
404.1529(c)(3).
Although an ALJ’s weighing of the consistency of
subjective statements must be upheld so long as it is supported
by substantial evidence, see Johnson, 434 F.3d at 653, the ALJ
has a general obligation to consider the record as a whole and
not “simply cherrypick facts that support a finding of
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nondisability while ignoring evidence that points to a
disability finding.”
Cir. 2017).
Lewis v. Berryhill, 858 F.3d 858, 869 (4th
“An ALJ may not consider the type of activities a
claimant can perform without also considering the extent to
which she can perform them.”
Arakas v. Comm’r, 983 F.3d 83, 99
(4th Cir. 2020) (quoting Woods v. Berryhill, 888 F.3d 686, 694
(4th Cir. 2018)) (emphasis in original).
Here, at least two, and likely three, of the ALJ’s
stated reasons for discounting the plaintiff’s subjective
statements were entirely consistent with the limiting effects
that plaintiff alleged resulted from her hearing loss.
First,
the plaintiff’s participation in the hearing was consistent with
her own statements about the limiting effects of her hearing
loss, notwithstanding the ALJ’s apparent omission of the
plaintiff’s request for an accommodation that the ALJ speak
slowly to facilitate her understanding.
The plaintiff stated
repeatedly that she was limited by her hearing in particular
situations where there were multiple conversations or lots of
background noise.
As she noted to the ALJ, she was able to
fully participate in the hearing precisely because such
conditions were accommodated in the hearing room setting.
Similarly, standing alone, it is difficult to assess
whether or not Dr. Moore’s notes that the plaintiff’s hearing
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was “intact to conversation” is consistent with the plaintiff’s
own subjective statements.
The court notes that the plaintiff
testified that she was able to hold conversations with small
groups of friends, albeit with some modification, such as
placing them on her good hearing side, to accommodate her
unilateral hearing loss in the left ear.
See Tr. 56.
Dr.
Moore’s observations, on the other hand, provide sparse detail
about the process used to ascertain that plaintiff’s hearing was
intact to conversation, or the environmental conditions in which
it was assessed.
To the extent it was assessed based on a one-
on-one conversation between a patient and her healthcare
provider in a quiet exam room, it would appear to have little
utility in assessing the consistency of plaintiff’s subjective
statements about her ability to hear in a classroom environment.
The ALJ’s discussion of the plaintiff’s activities of
daily life also appears to have little relation to the record
consistency of her subjective statements about the limiting
effects of her hearing loss.
In support of his finding that the
plaintiff’s conditions have “very little effect on her
activities of daily life,” the ALJ cited her ability to cook,
quilt, drive, perform household chores, socialize with family
and friends, and go out to eat.
Tr. 26.
The only impediment
acknowledged by the ALJ is the plaintiff’s need to be careful
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when going up and down stairs.
Id.
While perhaps germane to
the plaintiff’s vertigo or balance issues for reasons not
explained by the ALJ, there is little reason to see how the
plaintiff’s ability to cook, quilt, go out to eat, or perform
chores at home is inconsistent with her subjective statements
about the limiting effects of her hearing loss.
Furthermore, as concerns the plaintiff’s ability to
drive and socialize with family and friends, the ALJ appears to
have impermissibly cherrypicked certain facts about these
activities without considering the extent to which the plaintiff
was limited in doing them.
The plaintiff’s testimony hardly
conveys an ability to drive unaffected by her hearing loss where
she has been pulled over by patrol officers for a failure to
hear an emergency siren and expressed consequent hesitation
about driving.
Similarly, the ALJ’s discussion about
plaintiff’s ability to socialize fails to acknowledge the
significant limits on the extent to which plaintiff alleges she
can do so.
An adequate determination about the consistency of
plaintiff’s subjective statements with the record evidence
should have addressed limits raised multiple times in the
record, like her inability to be around small or large groups,
Tr. 53, 56, 245, as well as her statements that “I’m not very
social anymore because I can only hear out of my right ear,” Tr.
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245, and “someone speaking to me will not be heard unless they
are facing me and on my right side.” Tr. 246; see also Tr. 56.
Notwithstanding the issues with a number of the ALJ’s
cited reasons for discounting the plaintiff’s subjective
statements about the limiting effects of her hearing loss, his
conclusion is facially supported by substantial evidence in
light of the MRI results, notes and audiogram results from Dr.
Wetmore as of the time of the ALJ’s decision, as well as the
prior Physical RFC assessments by two State medical officers.
However, the court notes that subsequent to her hearing with the
ALJ and receipt of his written opinion, the plaintiff filed a
request for review with the Appeals Council, receipt of which
was acknowledged by the Office of Disability Adjudication and
Review on February 29, 2016.
Tr. 8.
In support of this
request, the plaintiff submitted additional evidence in the form
of medical records from WVU Medicine covering the dates
September 15, 2008 to February 11, 2016.
Tr. 6.
These records were submitted as additional evidence to
the Appeals Council and included two important new facts: (1)
Dr. Wetmore’s visit notes discussing the results from an
audiogram test conducted on February 11, 2016 showing “somewhat
worse hearing in the left ear with a moderate to profound
sensorineural hearing loss with a speech awareness of 45 dB but
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only 20% word recognition compared to 64% word recognition in
2013,” Tr. 439; and (2) MRI imaging results taken the same day
showing a “small region of enhancement within the internal
auditory canal on the left” that appeared “slightly more
prominent” than in the 2013 study, Tr. 435.
These later results
tend to demonstrate that claimant’s hearing is effectively
limited to one ear.
The Appeals Council received this additional evidence
and made it part of the record by Order dated December 23, 2016.
Id.
That same date, the Honorable Lisa W. Saunders,
Administrative Appeals Judge, issued a Notice denying
plaintiff’s request for review.
Tr. 2.
This Notice stated that
the Appeals Council had considered the ALJ’s decision, the
additional evidence, and the record as a whole, but concluded
that “the additional evidence does not provide a basis for
changing the Administrative Law Judge’s decision.”
Id.
Under the Regulations in effect at the time, plaintiff
was permitted to submit additional evidence to the Appeals
Council with her request for review that had not been before the
ALJ.
See 20 C.F.R. § 404.970(b) (2015).
The Appeals Council is
obliged to consider such additional evidence submitted where it
is new, material, and relates to the period on or before the
ALJ’s decision.
Id.; see also Meyer v. Astrue, 662 F.3d 700,
19
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704-05 (4th Cir. 2011).
“Evidence is new . . . if it is not
duplicative or cumulative.”
96 (4th Cir. 1991).
Wilkins v. Secretary, 953 F.2d 93,
“Evidence is material if there is a
reasonable possibility that the new evidence would have changed
the outcome.”
Id. (citing Borders v. Heckler, 777 F.2d 954, 956
(4th Cir. 1985)).
Upon this showing, the Appeals Council must consider
the additional evidence, along with the record as a whole, and
consider whether the ALJ’s decision is contrary to the weight of
the evidence.
20 C.F.R. § 404.1970(b) (2015).
If the Appeals
Council finds that the ALJ’s decision is not contrary to the
weight of the evidence, it may deny the claimant’s request for
review, and need not explain its rationale for doing so.
Meyer,
662 F.3d at 705.
While the Appeals Council need not provide a statement
of reasons for its denial of a request for review when
additional evidence is presented, a district court reviewing a
claimant’s challenge to the denial of benefits must assure
itself that the Commissioner’s decision is supported by
substantial evidence based on the entire record.
707.
See id. at
“Where an insufficient record precludes a determination
that substantial evidence supported the ALJ’s denial of
benefits, [a federal] court may not affirm [the decision] for
20
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harmless error.”
Cir. 2017).
Patterson v. Comm’r, 846 F.3d 656, 658 (4th
A record is insufficient where no fact finder has
assessed the probative value of competing evidence on the
record, Meyer, 662 F.3d at 707, unless the evidence in the case
as a whole is “so one-sided as to require the conclusion” that
the Commissioner’s denial of benefits was supported by
substantial evidence.
Wiebusch v. Comm’r, 2022 U.S. App. LEXIS
20732, at *13 (4th Cir. 2022).
The Appeals Council apparently determined that the WVU
Medicine records met the requirements that additional evidence
be new, material, and related to the relevant period when it
made the evidence part of the plaintiff’s record by its Order of
December 23, 2016.
Tr. 6.
This determination was sound in that
the WVU Medicine records were: new, in that they were neither
duplicative nor cumulative; material, in that there was a
reasonable possibility that the dramatic decline in audiogram
word recognition and slight worsening in MRI results could have
changed the outcome; and related to the period prior to the ALJ
hearing, in that the February 11, 2016 test results showing only
20 percent word recognition in the left ear concerned an ongoing
health issue present at the time of the hearing.
The Appeals Council having made this evidence part of
the record while summarily denying the plaintiff’s request for
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review, however, means that no fact finder has yet attempted to
weigh it or reconcile it with other conflicting and supporting
evidence in the record.
Taking the heed of the Fourth Circuit
in an analogous situation, this court notes that it cannot
undertake review of this evidence in the first instance.
662 F.3d at 707.
Meyer,
Like Meyer, this is not a case where the
Commissioner’s evidence discounting the plaintiff’s subjective
statements about the limiting effects of her hearing loss is so
one-sided that the Commissioner’s lack of fact-finding on the
additional evidence nevertheless supports a finding of
substantial evidence.
Indeed, the additional evidence weighs
directly and materially upon the MRI test results from 2007 to
2013, as well as the audiogram results and treatment notes from
Dr. Wetmore in 2010 and 2013 – both of which the ALJ relied upon
to discount the plaintiff’s subjective statements.
It is decidedly not the province of this court to
weigh the plaintiff’s statements against the record as a whole
and assess their consistency; that task is left to the
Commissioner.
However, it is the responsibility of this court
to require that the Commissioner’s decision be supported by
substantial evidence.
This requires a fair statement of the
facts considered and a logical explanation of how they build to
the Commissioner’s conclusion.
In this case, the Commissioner
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has not satisfied that requirement.
In determining the
plaintiff’s RFC, the ALJ found the plaintiff’s subjective
statements regarding the limiting effects of her hearing loss
“not entirely credible,” but this finding is not supported with
reasoning that shows inconsistency between the plaintiff’s
subjective statements about the limiting effects of her hearing
loss and the record as a whole, particularly in light of the
2016 WVU Medicine records.
c. Vocational Expert’s Testimony
The court next turns to the testimony of the
Vocational Expert.
In evaluating the plaintiff’s ability to
perform her past relevant work as a teacher and preschool
teacher, the ALJ found that plaintiff’s RFC would not preclude
her performance of work-related activities.
Tr. 27.
In
reaching this conclusion, the ALJ relied on the Vocational
Expert’s testimony in response to an initial hypothetical posed
by the ALJ that an individual with the plaintiff’s age,
education, and specific capacity and limitation to hearing in
only one ear, with noise at a moderate level, could perform as a
teacher or preschool teacher as generally performed in the
national economy.
Tr. 27, 64.
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The plaintiff contends that the ALJ’s decision on the
performance of past relevant work provided inadequate exposition
because it failed to account for purportedly contradictory
testimony from the Vocational Expert given in response to two
additional hypothetical questions from the ALJ and on
examination by plaintiff’s attorney.
For clarity, the court
reproduces each of these exchanges verbatim below.
Hypothetical #1
ALJ: Assume a hypothetical individual the claimant’s
age and education with the past jobs that you
described. Assume further that this individual is
limited to, and we’re going to say, we’ll start with
light work with the additional limitations: Climbing
ramps and stairs occasionally. Climb ladders, ropes,
and scaffolds, never. Balance occasionally. Stoop,
kneel, crouch, and crawl occasional. As far as
communications it’s limited to hearing only from one
ear. Unprotected heights, never. Moving mechanical
parts, never. Operating a motor vehicle, whether
[sic], humidity, and wetness, dust, odors, fumes,
extreme cold, extreme heat, vibration, occasionally.
Noise at a moderate level. Okay. Could the
hypothetical individual perform any of the past jobs
that you described as actually performed or generally
performed in the national economy?
. . .
VE: Yes, your honor.
ALJ: Okay, and which job?
VE: Both jobs, the preschool director teacher and also
the teacher.
Tr. 63-64 (emphasis supplied). 4
Following this exchange, the Vocational Expert clarified that
her response was with respect to how the jobs were generally
performed in the national economy (at a level of light
4
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Hypothetical #2
ALJ: [O]ne more hypothetical. Well, maybe another
one. But this is starting with the light with the
same limitations I had before, but in addition it’s
limited to hearing simple basic communications. So
it’s basically hypo-one in addition to hearing from
just one ear also limited in the ability to hear – all
you can hear are simple basic communications.
. . .
ALJ: -- I guess what I’m getting at is that it sounds
to me like as a teacher you got to be able to hear
more than just regular communication.
. . .
ALJ: You got to be able to concentrate and listen to
what a child or somebody is saying. You got to listen
to their questions –
VE: -- well, when you say basic communication, simple
basic communication are you talking about the
communication in terms of what’s required just to
complete routine activities of daily living like
managing to go to the grocery store and, you know, ask
for something they need and get a response and being
able to understand that response? Or being able to
ask very simple directions and being able to
understand those directions, say where is this place
located? You know, just how far from here is it, but
not getting into a long discussion where there’s just
a few words that they have to focus on and hear?
ALJ: I think it’s more than that.
. . .
ALJ: [They can] communicate more than that, but also
recognizing that there’s limited ability more than the
average person can hear with both ears. So I don’t
know if I can, how I – what I’m saying is that there’s
definitely a hearing, a loss of hearing and an ability
to hear what a normal person would hear. Is that –
VE: Well, I think, I think I understand what you’re
saying, and I think based on that because you’re going
to be limiting her to a quieter environment, because
there’s going to be interference from just regular
exertion), as opposed to how the plaintiff had actually
performed her work as a preschool teacher (at a level of medium
exertion). Tr. 64-65.
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routine noise that’s in like an office setting or
classroom setting. It’s going to have to be quieter
than that. Is that -ALJ: Yes.
VE: -- what you’re trying to say? In terms of her
being able to understand responses -ALJ: Yes.
VE: -- okay. In that event I would not be able to
identify any jobs that she could perform.
ALJ: And the past jobs I think would also be out.
Correct?
VE: Yes, they would because they were all moderate
noise level, and you have a combination of
conversations as well as background noise. Even
furnaces kicking on and off or your air conditioning
kicking on and off. Those kinds of noises plus
children chattering, possibly -ALJ: Okay.
VE: -- traffic in the hallway.
Tr. 70-72 (emphasis supplied).
Hypothetical #3
ALJ: So the third hypothetical instead of moderate I
guess I would be – I had limited it to be moderate.
It’s going to be less than moderate.
VE: Yes.
ALJ: And that would kick out, would then – she
couldn’t perform the past jobs and there would be no
other jobs.
VE: Correct [. . .]
Tr. 72-73 (emphasis supplied).
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Examination by counsel 5
ATTY: Okay. So in terms of your definition of
moderate exposure if I were to day [sic, say] the only
exposure she could tolerate are settings where there’s
not multiple conversations occurring at once and only
quiet settings? Would that qualify as moderate or is
that less than moderate?
VE: That’s less than moderate.
ATTY: Okay, and so of course that would rule out then
the past work.
VE: Yes.
ATTY: Okay.
ALJ: Okay.
That is the only question I had.
Actually --
ATTY: Thank you for bearing with me.
ALJ: -- that’s how they describe it here in my
program. So if I limited her to quiet work that would
take her out of the past work as a teacher.
VE: Yes.
Tr. 73-74 (emphasis supplied).
Taken together with the Vocational Expert’s testimony
that a classroom is a moderate noise environment, 6 Tr. 63, these
Due to an apparent stenographic error, the Vocational Expert’s
responses in this exchange are incorrectly attributed to the
claimant and marked as CLMT. For the sake of clarity, the court
has corrected this to read VE in the quoted passage.
5
This is consistent with the Dictionary of Occupational Titles
entry for Teacher, Elementary School. See Dictionary of
Occupational Titles § 092.227-010 (4th ed., 1991) (listing
classroom as a moderate noise environment); see also Special
Characteristics of Occupations Defined in the Revised Dictionary
of Occupational Titles, Appendix D (1993) (defining “noise
intensity level” and providing illustrative examples of a
6
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exchanges with respect to the hypotheticals establish the
following: (1) an individual limited to hearing in one ear in a
moderate noise environment is not precluded from working as a
teacher or preschool teacher; (2) an individual with hearing in
only one ear whose ability to hear is limited to simple basic
communications, whereas a teacher must be able to hear more than
just regular communication, would be unable to work in a
moderate noise environment and would require a quieter
environment, thus precluding the past relevant work as a teacher
or preschool teacher or any other job; (3) similar to the second
hypothetical, such an individual whose ability to hear requires
a less than moderate noise level would be precluded from any
job; and (4) such an individual whose ability to hear is
contingent on a quiet setting or the absence of multiple
conversations would be unable to work in a moderate noise
environment, thus precluding the past relevant work.
While the ALJ applied the first scenario in his
analysis, Tr. 64, what is clear enough about the latter
scenarios is that they concern a hypothetical individual who is
unable to perform work in moderate noise environments.
Thus,
they would hold relevance for the ALJ’s consideration of the
moderate noise environment as “business office where typewriters are used; department store; grocery store; light
traffic; fast food restaurant at off-hours”).
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plaintiff’s ability to perform her past relevant work if the ALJ
found, based on the evidence before him, that the plaintiff
could not tolerate a moderate noise environment.
In this case, the ALJ’s determination of the
plaintiff’s ability to tolerate a moderate noise environment
cannot be said to be supported by substantial evidence.
Here,
the determination that the plaintiff could tolerate a moderate
noise environment was based on a discounting of plaintiff’s
subjective statements about the limiting effects of her hearing
loss that was legally insufficient for the reasons set out in
the preceding subsection of this opinion.
Specifically, the
ALJ’s determination did not account for the effect of multiple
conversations and background noise.
As the vocational expert
noted in connection with the second hypothetical, “there’s going
to be interference from just regular routine noise that’s in
like an office setting or classroom setting. It’s going to have
to be quieter than that.”
Tr. 71-72.
Upon remand, the
Commissioner must revisit the analysis of the plaintiff’s
subjective statements about the limiting effects of her hearing
loss, taking into account the 2016 WVU Medicine records, as well
as the responses of the vocational expert, and determine the
effect on the plaintiff’s ability to tolerate a moderate noise
environment.
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IV.
Conclusion
For the foregoing reasons, and having reviewed the
record de novo, the court ORDERS as follows:
1. The motion to alter or amend the judgment (ECF No. 25)
be, and hereby is, granted;
2. The prior judgment of the court (ECF No. 24) be, and
hereby is, vacated and set aside;
3. The final decision of the Commissioner be, and hereby is,
reversed;
4. Plaintiff’s request for remand be, and hereby is,
granted, and this action is remanded to the Commissioner
for further proceedings pursuant to 42 U.S.C. § 405(g),
fourth sentence; and
5. This case be dismissed from the court’s docket.
The Clerk is directed to transmit copies of this order
to all counsel of record and any unrepresented parties.
ENTER: December 28, 2022
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