Bowles v. Berryhill

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. ECF No. 25.

I. 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

1 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.

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. ECF No. 20.

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. ECF No. 23, at

7, 12-15. 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. Id. at 12-15.

II. 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

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. ECF No. 27, at

2. 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

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. The

Supreme Court determined that this practice was clearly

appropriate, finding that:

[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.

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. The

ALJ proceeded to consider its effects on her RFC, ultimately

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. Johnson v. Barnhart, 434

F.3d 650, 653 (4th Cir. 2005). “Substantial evidence is such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.” Craig v. Chater, 76 F.3d 585, 589

(4th Cir. 1996). On substantial evidence review, a court may

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”). See Dowling

v. Comm’r, 986 F.3d 377, 388 (4th Cir. 2021). This involves

first determining whether the claimant has a medically

determinable impairment and then evaluating its limiting effects

on the claimant’s functioning. Monroe v. Colvin, 826 F.3d 176,

187 (4th Cir. 2016). “[A] proper RFC analysis has three

components: (1) evidence, (2) logical explanation, and (3)

conclusion.” Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir.

2019). The ALJ’s explanation must “build an accurate and

logical bridge from the evidence to [the] conclusion.” Monroe,

826 F.3d at 189. 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.

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

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

2 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.

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

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

(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.

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 symptom-

related 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

nondisability while ignoring evidence that points to a

disability finding.” Lewis v. Berryhill, 858 F.3d 858, 869 (4th

Cir. 2017). “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

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

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.

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

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,

704-05 (4th Cir. 2011). “Evidence is new . . . if it is not

duplicative or cumulative.” Wilkins v. Secretary, 953 F.2d 93,

96 (4th Cir. 1991). “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. See id. at

707. “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

harmless error.” Patterson v. Comm’r, 846 F.3d 656, 658 (4th

Cir. 2017). 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

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. Meyer,

662 F.3d at 707. 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

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.

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

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

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.

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).

Examination by counsel5

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. That is the only question I had.

ALJ: Okay. 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

5 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.

6 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

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 type-

writers are used; department store; grocery store; light

traffic; fast food restaurant at off-hours”).

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.

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

- Bb,

Jo . Copenhaver, Jr.

Senior United States District Judge

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