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Blane v. Berryhill

United States District Court, S.D. Mississippi, Southern Division

September 29, 2017




         Martin Franklin Blane appeals the final decision denying his applications for disabled widower's benefits (DWB) and supplemental security income (SSI). The Commissioner requests an order pursuant to 42 U.S.C. § 405(g), affirming the final decision of the Administrative Law Judge. Having carefully considered the hearing transcript, the medical records in evidence, and all the applicable law, the Court finds that the decision should be affirmed.

         On November 5, 2012, Blane filed applications for DWB and SSI alleging a disability onset date of March 31, 2007, due to depression and problems with his back, knee, ankle and heart. He was 48 years old on his alleged onset date, with three years of college and work experience in family-owned businesses as a retail store manager and electronic sales and service person. Following agency denials of his applications, an Administrative Law Judge (“ALJ”) rendered an unfavorable decision finding that he had not established a disability within the meaning of the Social Security Act. The Appeals Council denied Plaintiff's request for review. He now appeals that decision.

         At step one of the five-step sequential evaluation, [2] the ALJ found that Plaintiff had not engaged in substantial gainful activity since his alleged onset date. At steps two and three, the ALJ found that although Plaintiff's osteoarthritis of the knees, diabetes mellitus, hearing loss, obesity, major depressive disorder, and generalized anxiety disorder were severe, they did not meet or medically equal any listing. At step four, the ALJ found that Plaintiff had the residual functional capacity to perform medium work with the following exceptions (as paraphrased by the Court):

He cannot frequently balance, stoop, kneel, crouch, crawl, and climb ramps, stairs, ladders, ropes, and scaffolds; he should avoid concentrated exposure to noise (noise intensity level of no more than three as per SCO); avoid concentrated exposure to hazards such as dangerous moving machinery and unprotected heights; he is limited to simple, routine, repetitive tasks of unskilled work; he can maintain attention and concentration for two hours; occasionally interact with supervisors; work in proximity but not in coordination with co-workers; he can have no interaction with the general public and is limited to low stress work (no fast-paced production requirements, simple work-related decisions, and few or no changes in work setting.[3]

         Based on vocational expert testimony, the ALJ concluded that given Plaintiff's age, education, work experience, and residual functional capacity, he could perform work as a food service worker, store laborer, and floor waxer.

         Standard of Review

         Judicial review in social security appeals is limited to two basic inquiries: “(1) whether there is substantial evidence in the record to support the [ALJ's] decision; and (2) whether the decision comports with relevant legal standards.” Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996) (citing Carrier v. Sullivan, 944 F.2d 243, 245 (5th Cir. 1991)). Evidence is substantial if it is “relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion; it must be more than a scintilla, but it need not be a preponderance.” Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995) (quoting Anthony v. Sullivan, 954 F.2d 285, 295 (5th Cir. 1992)). This Court may not re-weigh the evidence, try the case de novo, or substitute its judgment for that of the ALJ, even if it finds evidence that preponderates against the ALJ's decision. Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994).


         Plaintiff contends that this case should be reversed or alternatively remanded for two reasons: (1) the ALJ erred in failing to develop the record concerning Plaintiff's hearing loss; and, (2) the ALJ's residual functional capacity is not supported by substantial evidence.


         Plaintiff alleges that the ALJ failed in his affirmative duty to develop the record concerning his hearing loss. Although he did not allege hearing loss in his disability applications, Plaintiff cites his daughter's third-party function report identifying hearing loss among his conditions, and his own testimony estimating a 50 percent loss at the administrative hearing. In addition, Plaintiff notes that the ALJ acknowledged that there was no auditory testing despite citing medical records showing hearing loss. All of this was sufficient to warrant a consultative hearing evaluation, Plaintiff argues, and the ALJ's failure to do so was error.[4]

         The duty to obtain a consultative examination is triggered only if “the record establishes that such an examination is necessary to enable the [ALJ] to make the disability decision.” Hardman v. Colvin, 820 F.3d 142, 148 (5th Cir. 2016) (quotation omitted). The decision is discretionary and must be balanced against the fact that the claimant bears the burden of proof through step four of the evaluation process. Brock, 84 F.3d at 728; Jones v. Bowen, 829 F.2d at 527 (5th Cir. 1987). It “does not extend to possible disabilities that are not alleged by the claimant or to those disabilities that are not clearly indicated on the record.” Hardman, 820 F.3d at 147 (quoting Leggett, 67 F.3d at 566). The claimant must present “evidence sufficient to raise a suspicion concerning a non-exertional impairment.” Clary v. Barnhart, 214 F. App=x. 479, 481 (5th Cir. 2007) (quoting Brock, 84 F.3d at 728). “Isolated comments in the record are insufficient, without further support, to raise a suspicion of non-exertional impairment.” Id. (citation omitted).

         In the instant case, the ALJ clearly found sufficient evidence based on the claimant's hearing testimony and other evidence to conclude that hearing loss was a severe impairment at step two. However, the Court can find no evidence of record indicating that Plaintiff has ever complained, or that any physician has found evidence, of hearing loss. Medical records referenced by the ALJ, and in turn, cited by Plaintiff on appeal, appear to be a singular medical report showing that Plaintiff was negative for hearing loss on examination, not positive. Neither the consultative physical or mental examinations ordered by the ALJ revealed evidence of hearing loss. On the contrary, Plaintiff's hearing acuity was “good to the whispered voice.” Given the lack of any medical finding confirming hearing loss, the failure to mention hearing loss as an impairment in his applications for benefits, and the failure to seek treatment for same, Plaintiff fails to show that an examination was necessary to determine his disability status. Hardman, 820 F.3d at 148. Further, ...

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