United States District Court, S.D. West Virginia, Charleston
MEMORANDUM OPINION AND ORDER
T. COPENHAVER, JR. UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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
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.)
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.)
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).
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.
(PF&R 1-2 (emphases and citations omitted).) On October
13, 2017, the Commissioner filed objections to the PF&R,
to which Claimant ...