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Harrod v. Berryhill

United States District Court, D. Nebraska

February 13, 2018

NANCY A. BERRYHILL, [1] Acting Commissioner of the Social Security Administration, Defendant.



         This matter is before the Court on the denial, initially and upon reconsideration, of plaintiff Barbara Ann Harrod's application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. and supplemental social security income benefits under Title XVI of the Act, 42 U.S.C. § 1381 et seq. The Court has considered the parties' filings and the administrative record. For the reasons discussed below, the Commissioner's decision will be affirmed.


         Harrod based her claim of disability on hearing loss and rheumatoid arthritis, T40, but the issues on appeal relate almost exclusively to hearing loss, so the Court's discussion of Harrod's medical history will focus on her hearing. Harrod has a long history of hearing impairment. She had surgery performed in 1983-bilateral tympanomastoidectomies-but her hearing continued to decline. T44; T272. A series of hearing tests, apparently performed in association with Harrod's former employer, show profound hearing loss in her right ear, and varying but severe hearing loss in her left ear, as far back as November 2006. T252.

         More recently, a hearing test in November 2011 showed a moderate to severe hearing loss in Harrod's left ear, and profound hearing loss in her right ear. T245. Her next annual test, in November 2012, resulted in the same findings. T259-60; see T252. She was seen for a physical examination in January 2013 because of cold symptoms, and her doctor observed that her left ear was impacted with cerumen, and that the tympanic membrane in her right ear appeared abnormal with history of trauma. T262-63. She was seen again in March, complaining of a blocked ear, which she characterized as "fullness" in her right ear. T264-65. Scarring of both tympanic membranes was noted. T264-65.

         After applying for disability benefits, T158-61, Harrod was seen for another hearing test in September 2013. That test indicated deafness in Harrod's right ear, and hearing loss in her left ear. T246. Specifically, the audiometric evaluation revealed deafness in her right ear and moderate to severe sloping sensorineural hearing loss in her left ear. T272. Speech discrimination was 100 percent in her left ear, and her speech reception threshold was 60 dB in her left ear. T272; see T275. She had 100 percent word recognition in her left ear at 85 dB. T246. She denied any pain or drainage in her ears, and reported no fullness or pressure. T272.

         Harrod's doctor, Thomas Connely, M.D., completed a hearing and speech impairment evaluation form, on which he noted tinnitus and established hearing loss. T271. He also noted an "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." T271. He noted the absence, however, of "[a] word recognition score of 40 percent or less in the better ear determined using a standardized list of phonetically balanced monosyllabic words." T271. Connely also discussed hearing aid amplification with Harrod for her left ear, suggesting that she "would get significant benefit." T273.

         In addition, two residual functional capacity evaluations were performed, based on review of Harrod's medical records, by consulting physicians Jerry Reed, M.D. and Steven Higgins, M.D. T68-72, T78-82. Both found that Harrod had communicative limitations, with limited hearing in both ears, and that Harrod should avoid even moderate noise exposure. T68-72, T78-82.

         Harrod testified that she could no longer work because when she explained to employers that she was hard of hearing, "all the places wouldn't hire [her] because [she] had to communicate with people and that's one reason [she] was not able to find work." T41. But she had been working part-time, for 2½ hours per day 5 days per week, helping prepare and serve meals at a senior citizens' center. T41.

         She had gotten a hearing aid in August 2014. T44. She said she still had difficulty hearing despite her hearing aid, and had tinnitus in her right ear. T51. She still relied on reading lips to understand people, "90 percent." T52. She had trouble understanding requests from supervisors and coworkers, and had to ask them to repeat themselves. T52. But when asked if the hearing aid had helped her at all, she said, "Oh, yes, " and said that her hearing was "[g]reatly better" with the hearing aid. T51. She had been able, for the first time, to hear her cat meow. T51-52.

         The administrative law judge (ALJ) presented the vocational expert with the following hypothetical:

Let's assume, then, that we have someone such as Ms. Harrod, someone of the same age, education, and past work history both as to exertional as well as skill level, and then further that she could lift up to 10 pounds on a frequent basis . . . 10 pounds on an occasional basis, five pounds frequently, or anything below 10 pounds frequently, that in an eight-hour day she could sit for six hours, stand for two hours, and has unlimited use of the extremities, that she should be away from any type of loud noise, that she should also be in an environment away from concentrated fumes, [astringents], and away from exposure to heights and open machinery.

T59-60. The vocational expert opined that such a person could do Harrod's past relevant work as an assembler (assuming the use of earplugs), even if she consistently missed 1 to 2 days a month. T60-61 PROCEDURAL BACKGROUND Harrod applied for disability insurance benefits on July 2, 2013, when she was 58 years old. T158-61, T171. Her claim was denied initially on September 19, and upon reconsideration on January 21, 2014. T86-93. Harrod appealed and requested a hearing from an ALJ. T104. The ALJ held a hearing on April 16, 2015. T36. In a decision dated July 16, the ALJ found that Harrod was not disabled as defined under 42 U.S.C. §§ 416(i) or 423(d), and therefore not entitled to benefits. T22-31.

         Sequential Analysis

         Disability, for purposes of the Social Security Act, is defined as the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a ...

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