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Bradley v. Colvin

United States District Court, M.D. Pennsylvania

March 6, 2017

CAROLYN COLVIN, Commissioner of Social Security, Defendant


          Martin C. Carlson United States Magistrate Judge


         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 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, 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.

         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.


         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 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.) The record reflects that upon 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 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 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, 358-364.)

         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-on-one, groups, crowds, warning signals, alerting signals. She'll need everything turned up much louder. She'll 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.

(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 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 ...

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