Timothy Brown v. Carolyn W. Colvin

United States Court of Appeals

For the Eighth Circuit

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No. 15-3001

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Timothy Brown

lllllllllllllllllllll Plaintiff - Appellant

v.

Carolyn W. Colvin, Acting Commissioner of Social Security

lllllllllllllllllllll Defendant - Appellee

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Appeal from United States District Court

for the Eastern District of Arkansas - Jonesboro

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Submitted: March 17, 2016

Filed: June 17, 2016

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Before WOLLMAN, ARNOLD, and SHEPHERD, Circuit Judges.

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WOLLMAN, Circuit Judge.

Timothy Brown appeals the denial of his application for disability insurance

benefits under Title II of the Social Security Act. See 42 U.S.C. § 401 et seq. Brown

filed his application for benefits in December 2011, alleging disability beginning in

November 2011 due to severe hearing loss, diabetes, diabetic neuropathy, chronic

obstructive pulmonary disease, degenerative disc disease of the lumbar spine, and

severe diarrhea caused by medication side effects. Following an August 2013

hearing, an administrative law judge (ALJ) denied Brown’s application, the Appeals

Council declined to review the ALJ’s decision, and the district court affirmed the

denial of benefits. On appeal, Brown argues that the ALJ failed to properly assess his

hearing loss. We reverse and remand.

At the administrative hearing, Brown testified that he was born in 1958, was

fifty-five years old, had a high-school education, and had past relevant work as a sales

representative. He stated that he had tried three sets of hearing aids over the years,

spending $4,500 on the last set, but that the hearing aids had not done “one bit of

good.” Brown indicated that he had lost two jobs as a result of his hearing problems.

He stated that he had difficulty hearing the television and tried to read lips; that he

had to sit “right close” to his wife to converse; and that when his wife spoke to him

from another room, “[i]t’s like I don’t even know she spoke.” Brown testified that

he talked on the telephone infrequently and avoided crowds because he could not hear

or understand conversations in those circumstances. The transcript of the hearing

reveals that, shortly after the ALJ began his opening remarks, Brown indicated that

he was having difficulty hearing and requested that he be allowed to sit nearer to the

ALJ. Brown testified that when he was sitting farther away, he “could hear some kind

of voice speaking[, b]ut couldn’t understand not one word [the ALJ] said.” Brown

testified that even after moving to within seven feet of the ALJ, he had to strain to

hear the ALJ’s questions, as confirmed by the eleven or so occasions on which Brown

had to ask the ALJ to repeat himself or clarify a question during the roughly one-hour

hearing.

As relevant here, the medical evidence included the results of a consultative

audiometric test conducted on January 20, 2012, which revealed that Brown had

“severe, sloping to profound sensorineural hearing loss” in both ears and “Speech

Reception Threshold (SRT) scores . . . at 95 dB HL” for both ears. The audiologist

who administered the test indicated in her report that “reliability for this audiogram

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was considered to be questionable,” but she provided no further details.1 Three days

later, Brown underwent a consultative physical examination by Sudhir Kumar, M.D.,

who diagnosed Brown with bilateral hearing loss and noted that it was “difficult” for

Brown to hear normal conversation, that Brown’s ability to hear was “poor,” and that

Brown’s auditory loss was fifty percent in each ear. On February 10, 2012, John Jiu,

M.D., conducted a consultative otolaryngological examination, during which he also

reviewed the results of the January 20 audiometric test results. Dr. Jiu’s examination

notes indicated that Brown’s communicative ability was “hearing impaired” and that

Brown suffered from “decreased hearing bilateral.” After reviewing the January 20

hearing test, Dr. Jiu confirmed that Brown’s “HEARING LOSS/SENSORINEURAL”

was “unchanged.”2 A state agency doctor reviewed this medical evidence and stated

that the “audiogram from 1/20/12 showed the claimant meets [listing] level but the

results were questionable.” On April 5, 2012, Brown underwent an additional

consultative examination by Mark Clemons, M.D., which included an audiogram test

that revealed “severe sensorineural hearing loss in both ears with poor discrimination

at 46% [in the right ear] and 52%” in the left ear. Dr. Clemons completed a form to

record the results of the test. The form included a section for the test administrator

to rate the reliability of the test conditions, offering three options: “GOOD,” “FAIR,”

or “POOR.” Dr. Clemons circled the space between “FAIR” and “POOR,” but he

provided no further explanation.

Employing the five-step process set forth in 20 C.F.R. § 404.1520(a), the ALJ

found that Brown had not been gainfully employed since the alleged disability onset

1

In one of several misstatements of the evidence in the denial order, the ALJ

identified David Lewis, M.D., as the individual who performed this hearing test and

prepared the resulting report when, in fact, it was Misty N. Johnson, M.S., CCC-A,

who had done so.

2

The ALJ also incorrectly stated that Dr. Lewis performed audiometric testing

of Brown on February 10, 2012, when, in fact, Dr. Jiu merely reviewed the results of

the hearing test conducted on January 20, 2012.

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date; that Brown’s hearing loss, diabetes, and asthma were severe impairments; but

that there was “no evidence” to show that Brown had an impairment or combination

of impairments that met or medically equaled the severity of one of the listed

impairments. The ALJ then determined that Brown had the residual functional

capacity (RFC) to perform medium work with some exertional and nonexertional

limitations, including only “face-to-face . . . verbal communication.” The ALJ

concluded that none of the limitations in Brown’s RFC precluded him from

performing his past relevant work as a sales person or sales representative. In the

alternative, “considering [Brown’s] age, education, work experience, and [RFC],” the

ALJ relied on a vocational expert’s testimony to conclude that Brown could perform

other available work as a cooks helper, retail bagger, grocery-store clerk, or cashier.

The ALJ thus concluded that Brown was not disabled.

The Appeals Council’s denial of Brown’s request for review made the ALJ’s

decision the final decision of the Commissioner. See Lott v. Colvin, 772 F.3d 546,

548 (8th Cir. 2014). We review the ALJ’s denial of disability insurance benefits de

novo to ensure that there was no legal error and that the findings of fact are supported

by substantial evidence on the record as a whole. See Halverson v. Astrue, 600 F.3d

922, 929 (8th Cir. 2010). Substantial evidence is less than a preponderance, but

enough that a reasonable mind would find it adequate to support a conclusion. See

id. We must consider the record as a whole, including evidence that detracts from the

ALJ’s decision, as well as evidence that supports it. See Boettcher v. Astrue, 652

F.3d 860, 863 (8th Cir. 2011). “[T]he ALJ bears a responsibility to develop the

record fairly and fully, independent of the claimant’s burden to press his case.”

Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir. 2004); see also Scott ex rel. Scott v.

Astrue, 529 F.3d 818, 824 (8th Cir. 2008) (noting that ALJ’s obligation to develop

the record includes duty to order additional testing if existing test results are invalid);

Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004) (noting ALJ’s duty to seek

clarifying statements from a treating physician when “a crucial issue is

undeveloped”); Naber v. Shalala, 22 F.3d 186, 189 (8th Cir. 1994) (noting that ALJ

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has a duty to obtain additional medical evidence if existing evidence is insufficient

to determine whether a claimant is disabled, but that such evidence is not required if

the record otherwise provides a sufficient basis for the decision).

Brown argues that substantial evidence on the record as a whole does not

support the ALJ’s assessment of his hearing loss because the ALJ failed to consider

whether Brown met the requirements under Listing 2.10 and failed to address or

reconcile Brown’s inconsistent hearing-test results. We agree. “[T]he listings were

designed to operate as a presumption of disability that makes further inquiry

unnecessary.” Lott, 772 F.3d at 549 (quoting Sullivan v. Zebley, 493 U.S. 521, 532

(1990)). Thus, if the ALJ determines at step three of the sequential analysis that a

claimant has a listed impairment, the claimant “must be held disabled, and the case

is over.” Jones v. Barnhart, 335 F.3d 697, 699 (8th Cir. 2003).

The applicable listing in this case is Listing 2.10, “Hearing loss not treated with

cochlear implantation,” which provides in relevant part that a claimant has an

impairment severe enough to preclude gainful activity if he has “[a]n average air

conduction hearing threshold of 90 decibels or greater in the better ear and an average

bone conduction hearing threshold of 60 decibels or greater in the better ear,” or if

he has “[a] word recognition score of 40 percent or less in the better ear.” 20 C.F.R.

Pt. 404, Subpt. P, App. 1, § 2.10. In determining whether Brown’s severe hearing

impairment met or medically equaled a listed impairment, however, the ALJ noted

that it had considered Listing 2.08, an earlier provision titled “Hearing Impairments,”

that was removed from the Listings effective August 2, 2010, and replaced with

Listing 2.10. See Revised Medical Criteria for Evaluating Hearing Loss, 75 Fed.

Reg. 30,693 (June 2, 2010) (final rules), 73 Fed. Reg. 47,103, 47,106 (Aug. 13, 2008)

(proposed rules) (proposing new Listing 2.10 that would apply to individuals without

cochlear implants and “remove the requirement for testing with hearing aids”). The

ALJ did not mention Listing 2.10, much less make a determination on the record

whether the results of Brown’s hearing tests met the criteria for Listing 2.10.

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The ALJ’s failure to identify and analyze the appropriate listing, although error,

may not by itself require reversal so long as the record otherwise supports the ALJ’s

overall conclusion. See Scott, 529 F.3d at 822. This is not such a case. Here, the

record as a whole does not support the ALJ’s decision because, among other

shortcomings, the decision did not adequately account for the inconsistencies in the

medical evidence. See, e.g., id. at 823 (noting that, when ALJ fails to support a

finding that the claimant did not meet or equal a listing and when the record contains

inconsistencies on the issue, “we are unable to determine whether substantial

evidence supports the ALJ’s finding that [the claimant’s] impairments did not meet

or medically equal [the] listing”). Brown’s January 2012 hearing test reflected a

score of 95 decibels in both ears—a score that appears to meet the requirements of

Listing 2.10—although the reliability of that test was labeled “questionable.”

Brown’s April 2012 hearing test, on the other hand, reflected “poor discrimination at

46% and 52%”—a score that does not appear to meet the requirements of Listing

2.10. As with the first hearing test, however, the reliability of Brown’s April 2012

hearing test was only fair to poor.

In his discussion of the hearing-test results, the ALJ erroneously stated that Dr.

Lewis conducted audiometric testing of Brown in February 2012 and, compounding

the error, assigned “significant weight to the opinion of Dr. Lewis” because it was

based on a thorough evaluation of Brown and was consistent with the other medical

evidence. No audiometric testing was done in February 2012. As set forth above, in

February 2012, Dr. Jiu—not Dr. Lewis—reviewed the results from the January 2012

hearing test and declared those results, which appeared to meet Listing 2.10,

unchanged. The ALJ also assigned “significant weight” to the April 2012 test

conducted by Dr. Clemons and the opinion of Stephen Whaley, M.D., a “state agency

non-examining expert,” whose report cited only the results from the April 2012

hearing test and did not discuss the January 2012 hearing test.

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The ALJ did not mention, much less resolve, the seemingly inconsistent results

obtained from Brown’s two hearing tests. Nor did the ALJ adequately explain why

he apparently elected to place greater weight on the results from the April 2012

hearing test rather than the results from the February 2012 hearing test. Neither test

was deemed to be altogether reliable—the April 2012 test was deemed of fair to poor

reliability, and the February 2012 test was deemed of questionable reliability. In light

of these inconsistent and, seemingly equally unreliable test results on a “crucial

issue,” Stormo, 377 F.3d at 806, as well as the ALJ’s failure to accurately describe

the medical evidence in the record and his failure to identify or analyze the relevant

Listing, we are unable to determine whether substantial evidence on the record as a

whole supports the ALJ’s finding that Brown did not meet or medically equal a listed

impairment, see Scott, 529 F.3d at 822 (concluding that “remand is appropriate where

the ALJ’s factual findings, considered in light of the record as a whole, are

insufficient to permit this Court to conclude that substantial evidence supports the

Commissioner’s decision”).3 Accordingly, we reverse and remand to the district court

with instructions to return the case to the Commissioner for further proceedings

consistent with this opinion, which may well require a reevaluation of Brown’s RFC,

depending upon the severity of his hearing loss.

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3

We have noted that “it may be reversible error for an ALJ not to order a

consultative examination when, without such an examination he cannot make an

informed choice.” Lott v. Colvin, 772 F.3d 546, 549 (8th Cir. 2014) (quoting Conley

v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986) (per curiam)). On remand, the ALJ

should consider whether an additional consultative hearing test is necessary to

determine if Brown’s severe hearing impairment meets Listing 2.10. We note that in

response to government counsel’s rhetorical question, “How many tests do we have

to order?” Brown’s counsel responded on rebuttal, “Until you get one that is reliable.”

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