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Bowles v. Berryhill

United States District Court, S.D. West Virginia, Charleston

March 12, 2018

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.



         Pending are the objections to the magistrate judge's Proposed Findings and Recommendation (“PF&R”), filed by Nancy A. Berryhill (“the Commissioner”) on October 13, 2017.

         I. Procedural History

         The plaintiff, Claudia Winter Bowles (“Claimant”), instituted this action on February 16, 2017, pursuant to 42 U.S.C. § 405(g) (2016). Claimant seeks judicial review of the Commissioner's final decision denying her application for disability insurance benefits. She claims that hearing loss in her left ear and mental impairments such as anxiety and insomnia prevent her from working as a teacher. (See Tr. 22, 25.) Only Claimant's hearing loss is at issue here.

         As the magistrate judge noted, Claimant was 61 years old as of the amended alleged onset date, December 31, 2011, and considered a person of advanced age or closely approaching advanced age as of the date of the ALJ's decision on October 27, 2015. She last worked as a language arts teacher to sixth grade students and last worked a full year in 2011. She worked as a substitute teacher briefly after her amended alleged onset date; however, that did not rise to the level of substantial gainful activity. The ALJ determined that Claimant met the requirements for insured worker status through June 30, 2016.

         The ALJ found that Claimant had the residual functional capacity (“RFC”) to perform light work with relatively few limitations “except . . . she would be limited to hearing from only one ear . . . and could have exposure to no more than a moderate noise level.” (Id. 24.) The ALJ further found Claimant was capable of performing her past relevant work as a teacher and a preschool teacher where that did not involve activities precluded by her RFC. (Id. 27.)

         Claimant first experienced hearing loss in her left ear sometime in 2005. (Id. 369.) In 2006, Dr. Stephen J. Wetmore, an otolaryngologist, with the aid of MRIs diagnosed Claimant with an acoustic neuroma on her left side, which resulted in a degree of hearing loss in her left ear. (Id. 368- 70.) Over the ensuing years, Claimant continued visiting Dr. Wetmore once every two or three years for further evaluation. (See id. 366-91, 413-40.) On February 8, 2013, - Claimant's only visit after her onset date on December 31, 2011 and before the ALJ's decision on October 27, 2015 - Dr. Wetmore measured Claimant's acoustic neuroma “at 4x3 mm[, ] . . . somewhat smaller than the previous study” in 2010, and an audiogram showed that Claimant had a “word recognition score” of 64% and that her “pure tones” were at 250 Hz. (Id. 432.) Dr. Wetmore concluded that these values “show[ed] very minimal [w]orsening of [Claimant's] hearing compared to . . . 2010” and assessed Claimant as suffering from “[s]ensorineural hearing loss” in her left ear. (Id.)

         After the ALJ's decision on October 27, 2015, Claimant had another appointment with Dr. Wetmore on February 11, 2016. (Id. 438.) At this appointment, an MRI revealed “a small region of enhancement within the auditory canal on the left” when compared to Claimant's 2013 study. (Id. 435.) Claimant's audiogram showed that she had “only 20% word recognition, ” and Dr. Wetmore concluded that Claimant “had somewhat worse hearing in the left ear with a moderate to profound sensorineural hearing loss.” (Id. 439.) This evidence was submitted to the Appeals Council before whom Claimant sought review of the ALJ's decision which became the final decision of the Commissioner when the Appeals Council denied Claimant's request for review on December 23, 2016.

         Claimant began visiting Dr. Fatima Aziz, a primary care physician, around September 15, 2010. (Tr. 336.) On October 13, 2010, Claimant had a follow-up appointment with Dr. Aziz, during which Claimant stated that she was currently experiencing “[h]earing [l]oss” and Dr. Aziz noted that her “neuroma is unchanged.” (Id. 334-35.) On January 11, 2011, Claimant had another follow-up with Dr. Aziz. (See id. 331-33.) On February 2, 2011, Claimant visited Dr. Aziz for an illness, experiencing “[s]ore throats, [h]earing loss, and [c]ough.” (See id. 327-30.) On April 7, 2011, Claimant visited Dr. Aziz again for an illness. (See id. 325-26.) On July 18, 2011, Claimant had a follow-up appointment with Dr. Aziz. (See Id. 321.) On January 18, 2012, Claimant had a follow-up appointment with Dr. Aziz where she again reported that she was doing well, but she also noted that her “[h]earing is getting worse in left ear.” (Id. 318.) On July 18, 2012; August 21, 2012; January 22, 2013; and July 18, 2013, Claimant returned to Dr. Aziz for follow-up appointments. (See id. 303-25.)

         In January 2014, Claimant began visiting Dr. Iva E. Moore for primary care. (Id. 351.) Claimant had a total of five appointments with Dr. Moore through April 2015. (See Id. 351, 355, 358, 362, 405.) At these five appointments, Dr. Moore noted that Claimant's hearing was “intact to conversation” during all but one (Dr. Moore made no remarks concerning Claimant's hearing during that one), and Claimant complained of vertigo only once and never of hearing loss. (See id. 352-53, 356-57, 359-60, 363-64, 406-07.) At a December 2014 appointment, Dr. Moore noted, however, that “[Claimant] has debilitating vertigo and hearing loss, ” a statement made without articulating any basis for it or the degree of debilitation. (Id. 362.)

         Two state agency medical consultants reviewed Claimant's medical records. First, Dr. Fulvio Franyutti opined that, based on the evidence, Claimant should avoid concentrated exposure to noise, among others. (See id. 83-85.) Nevertheless, Dr. Franyutti concluded that Claimant was not disabled and could perform work as a teacher as it is generally performed in the national economy despite her limitations. (Id. 85-86.) The second medical consultant, Dr. Subhash Gajendragadkar, concurred with Dr. Franyutti. (See id. 96-99.) At Claimant's hearing before the ALJ, Patricia McFann, a vocational expert, affirmed that a person under the limitations opined by the medical consultants could perform work as a teacher as it is generally performed in the national economy. (Id. 61-64.) However, on February 20, 2014, in response to a request for information “to help address [Claimant's] psychological allegations” in connection with Claimant's request for social security benefits, Dr. Aziz stated that “[Claimant] is deaf in left ear from acoustic neuroma this might interfere with teaching (2011 diagnosed).” (Id. 344.) Ultimately, on October 27, 2015, the ALJ denied Claimant's request for benefits, (id. 27), and, as noted, the appeals council denied review of the ALJ's decision, (id. 1).

         Claimant initiated this action in this court on February 16, 2017. According to 28 U.S.C. § 613(b)(1)(B) and the standing order in this district, the action was referred to United States Magistrate Judge Omar J. Aboulhosn for consideration. Claimant moved for judgment on the pleadings on June 26, 2017. On September 29, 2017, the magistrate judge filed his PF&R. He recommends that the court

grant [Claimant'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 [the Commissioner'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 1-2 (emphases and citations omitted).) On October 13, 2017, the Commissioner filed objections to the PF&R, to which Claimant ...

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