Opinion
Case No. EDCV 16-1901 AJW
07-20-2017
CARLENE MONIQUE BUTLER, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OF DECISION
Plaintiff seeks reversal of the decision of defendant, the Acting Commissioner of Social Security (the "Commissioner"), denying plaintiff's applications for supplemental security income ("SSI") benefits. The parties have filed a Joint Stipulation ("JS") setting forth their respective contentions.
Administrative Proceedings
On October 31, 2012, plaintiff protectively filed her SSI benefits application alleging that she had been disabled since November 4, 2010. [See JS 2; Administrative Record ("AR") 107-125]. In a December 2, 2014 written hearing decision that constitutes the Commissioner's final decision, the Administrative Law Judge ("ALJ") denied plaintiff's application for SSI benefits. [AR 15-23]. The ALJ noted that plaintiff had filed prior applications for disability insurance benefits and SSI benefits alleging that she became disabled on October 8, 2010. Those applications were denied in a final written hearing decision finding plaintiff "not disabled" from October 8, 2010 through February 23, 2012, the date of that decision. [See AR 15, 97-103, 250-251]. The ALJ further determined that plaintiff had not rebutted the presumption of continuing non-disability arising from the prior, final decision that she was not disabled. [AR 15]. The ALJ found that plaintiff retained the residual functional capacity ("RFC") to perform a range of light work that did not preclude performance of her past relevant work as a telephone operator and as an office assistant as either actually or generally performed. [AR 22-23]. Accordingly, the ALJ found plaintiff not disabled at any time from October 31, 2012, the date her application was filed, through the date of the ALJ's decision. [AR 23].
SSI benefits are not payable prior to the month following the month which the claimant's application is filed, regardless of the date of onset. See 20 C.F.R. §§ 416.330, 416.335. Therefore, the relevant period was the date plaintiff's application was filed through the date of the ALJ's decision.
Standard of Review
The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Soc. Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas, 278 F.3d at 954 (citing Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999)).
Discussion
Presumption of continuing non-disability
Although applied less rigidly to administrative than to judicial proceedings, the principles of res judicata apply to administrative decisions. See Lester v. Chater, 81 F.3d 821, 827 (9th Cir. 1995); Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988). A prior, final determination that a claimant is not disabled creates a rebuttable presumption that the claimant retains the ability to work after the date of the prior administrative decision. See Schneider v. Comm'r of Social Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); Lyle v. Sec'y of Health & Human Servs., 700 F.2d 566, 567 (9th Cir. 1983). "Normally, an ALJ's findings that a claimant is not disabled 'creates a presumption that the claimant continued to be able to work after that date. However, the presumption does not apply 'where the claimant raises a new issue, such as the existence of an impairment not considered in the previous application.'" Vasquez v. Astrue, 572 F.3d 586, 597 (9th Cir. 2009) (quoting Lester, 81 F.3d at 827).
The Ninth Circuit has held that "all an applicant has to do to" to rebut the presumption of continuing non-disability is to "raise a new issue in the later proceeding." Vasquez, 572 F.3d at 598 (holding that the ALJ erred in applying the presumption of continuing non-disability where the claimant alleged a mental impairment not alleged in his earlier application, and that for purposes of rebutting the presumption it was irrelevant that the ALJ found that impairment not severe). Under Ninth Circuit law, plaintiff rebutted the presumption of continuing non-disability by raising a new impairment during the September 2014 hearing. Plaintiff's counsel asked her to describe the impairments that prevented her from working after the date of the hearing on her prior applications. Plaintiff testified that she had right ear pain associated with fluctuating hearing loss and tinnitus, and that her ear problems started around the beginning of 2014. She said that her children and grandchildren had noticed her hearing loss and brought it to her attention, and that she was aware that it was an issue. Plaintiff said that her doctor had discussed a hearing aid with her but wanted to wait before prescribing one, and that one of her doctors said she had nerve damage but another doctor disagreed. [See AR 35, 38-40]. Asked by her counsel about a reference to tinnitus in her medical records, plaintiff said that since the start of 2014 she had "a lot of ringing in my ear." [AR 40].
Defendant argues that plaintiff "not only failed to prove greater disability than in 2012, she has completely ignored her burden" to "prove changed circumstances" and rebut the presumption of continuing non-disability. [JS 8]. However, plaintiff was not required to prove changed circumstances to rebut the presumption; she had only to allege the existence of a new impairment. See Lester, 81 F.3d at 827 ("[T]he Commissioner may not apply res judicata where the claimant raises a new issue, such as the existence of an impairment not considered in the previous application."). Plaintiff's hearing testimony about her right ear pain, hearing loss, and tinnitus was sufficient to rebut the presumption.
Since the ALJ erred in finding that plaintiff had not rebutted the presumption of continuing non-disability, his decision can stand only if it is otherwise supported by substantial evidence in the record and free of harmful legal error.
Severity finding
Plaintiff contends that the ALJ erred in failing to discuss or make any findings regarding the existence or severity of her ear and hearing problems. [JS 4-6].
At step two of the five-step sequential evaluation procedure, the Commissioner must determine whether the claimant has a severe, medically determinable impairment or combination of impairments. See Smolen v. Chater, 80 F.3d 1273, 1289-1290 (9th Cir. 1996) (citing Bowen v. Yuckert, 482 U.S. 137, 140-141 (1987)). An medically determinable medical impairment is one that results "from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques," and it "must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by [the claimant's] statement of symptoms." 20 C.F.R. §§ 404.1508, 416.908, 404.1528, 416.928; see Social Security Ruling ("SSR") 96-4p, 1996 WL 374187, at *1-*2.
Many of the relevant regulations were revised, recodified, or deleted after the date of the ALJ's decision. See. e.g., Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017) (final rules effective Mar. 27, 2017); Revised Medical Criteria for Evaluating Mental Disorders, 81 Fed. Reg. 66138 (Sep. 26, 2016) (final rules effective Jan. 17, 2017). Unless otherwise noted, all regulations cited herein are to the historical version of the regulation that was in effect on the date of the ALJ's decision.
The ALJ must determine whether a claimant's medically determinable impairment or combination of impairments significantly limits his or her physical or mental ability to do "basic work activities," which are "the abilities and aptitudes necessary to do most jobs," such as (1) physical functions like walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, and handling; (2) the capacity for seeing, hearing, and speaking; (3) understanding, carrying out, and remembering simple instructions; (4) the use of judgment; (5) responding appropriately to supervision, co-workers, and usual work situations; and (6) dealing with changes in a routine work setting. 20 C.F.R. §§ 404.1521, 416.921.
As noted above, plaintiff raised the issue of ear and hearing problems before the ALJ by testifying that she experienced right ear pain, hearing loss, and tinnitus since the beginning of 2014, about nine months before the hearing on her current SSI application. Her treatment records from San Bernardino County clinics indicate that she sought treatment for ear and hearing problems before that date In July 2013, plaintiff presented with complaints of ringing and pressure in her ears and decreased hearing that at that point already had been going on "for months." Her diagnoses included chronic bilateral ear tinnitus, chronic, with decreased hearing, and she was referred to audiology. [AR 996-997].
During an August 2013 follow-up visit, plaintiff again complained of hearing problems. She underwent an audiogram, which showed abnormalities in both the right and left ear at higher frequencies. She was referred to audiology and to an ear, nose, and throat specialist. [AR 992-993]. On January 16, 2014, plaintiff again sought treatment for ear problems. [AR 967-970]. She reported having seen an ear doctor, who told her she had fluctuating hearing loss due to fluid in her ear. [AR 967]. She "fail[ed] an audiogram here in clinic" but there was no "record of a formal audiology evaluation." [AR 968]. Her diagnoses included decreased hearing and serious otitis media by history. [AR 968, 970]. Plaintiff was advised to follow up with her primary care doctor. [AR 968].
In March 2014 and April 2014, plaintiff was seen for complaints of hearing problems, among other things. She was assessed with "intermittent" and "fluctuating" hearing loss and referred to audiology for a repeat audiogram. [AR 986-988]. In August 2014, plaintiff sought treatment for chronic, daily ringing in her ears associated with a history of ear pain, recently increasing in severity, and hearing loss. [AR 965]. A July 2014 audiogram showed hearing within normal limits, but the audiologist's impression was that plaintiff had a Eustachian tube defect. [AR 964]. Examination of her ears bilaterally revealed a right tympanic membrance that was "cloudy compar[ed] to the left side with some tenderness with otoscope maniuplation." [AR 965]. Plaintiff's assessment was possible recent otitis media (ear infection) with Eustachian tube defect. She was prescribed an antibiotic, Claritin, and Sudafed, and was referred to an ear, nose, and throat specialist. [AR 965-966]. Abnormalities were noted on an August 2014 right ear audiogram. [AR 964].
The ALJ did not mention or make any findings regarding ear or hearing problems in his December 2014 hearing decision. Plaintiff's subjective testimony and her medical records for a period of over one year reflecting her treatment for ear pain, tinnitus, and fluctuating or intermittent hearing loss document signs, symptoms, and laboratory findings establishing the existence of a medically determinable hearing impairment (and do not, as defendant contends, merely establish that she had an ear infection). Since plaintiff produced evidence of a medically determinable impairment, the ALJ was required to assess the severity of that impairment and to make appropriate findings at subsequent steps of the sequential evaluation procedure. See 20 C.F.R. §§ 404.1520, 416.920.
The ALJ's error cannot be considered harmless because hearing is a "basic work activity" that affects the ability to perform most jobs, 20 C.F.R. §§ 404.1521(b), 404.921(b), and because plaintiff's ear and hearing problems are relevant to her ability to perform her past relevant work as a telephone operator and an office assistant. The Dictionary of Occupational Titles ("DOT") states that the occupation of telephone operator, DOT job number 235.662-022, requires "constant" hearing (defined as 2/3 or more of the time), and that the occupation of office assistant, DOT job number 219.362-010 (designated as an "administrative clerk" or "general office clerk" in the DOT) requires "frequent" hearing (defined as from 1/3 to 2/3 of the time). Nothing in the record suggests that those jobs as actually performed by plaintiff required less hearing ability. [See AR 240-249 (plaintiff's work history report)].
Defendant's attempt to "fill in the blanks" in the ALJ's decision fails because the court is "constrained to review the reasons the ALJ asserts" for the denial of benefits and "cannot affirm the decision of an agency on a ground that the agency did not invoke in making its decision." Stout v. Comm'r, Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (quoting Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003); Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001)). Accordingly, the ALJ committed reversible legal error.
Remedy
A district court may "revers[e] the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing[.]" Treichler v. Comm'r of Soc., Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (quoting 42 U.S.C. § 405(g)). A remand for further administrative proceedings is the proper remedy in this case because the ALJ's erroneous reliance on the presumption of continuing non-disability and his failure to evaluate plaintiff's subjective testimony and the medical evidence regarding her ear and hearing problems means that "all essential factual issues" have been not been resolved. Treichler, 775 F.3d at 1101.
On remand, the Commissioner shall direct the ALJ to offer plaintiff the opportunity for a new hearing, take appropriate steps to develop the record, properly evaluate the medical evidence of record and plaintiff's subjective testimony, and issue a new hearing decision containing properly supported findings.
This disposition makes it unnecessary to separately consider plaintiff's contention that the ALJ erred in evaluating plaintiff's subjective symptom testimony. [See JS 14-24]. --------
Conclusion
For the reasons stated above, the Commissioner's decision is reversed, and this case is remanded to the Commissioner for further administrative proceedings.
IT IS SO ORDERED.
July 20, 2017
/s/_________
ANDREW J. WISTRICH
United States Magistrate Judge