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Johnson v. Astrue

October 26, 2010

MARC W. JOHNSON, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On August 26, 2003, Plaintiff Marc W. Johnson ("Plaintiff") filed an application for Disability Insurance Benefits ("DIB") under the Social Security Act ("the Act"). In that application, Plaintiff asserts that he has been disabled since July 1, 2003. The Commissioner of Social Security ("the Commissioner") denied him benefits for lack of disability.

Plaintiff now seeks judicial review of the Commissioner's decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Compl. (Dkt. No. 1). Both parties have moved for judgment on the pleadings. For the reasons that follow, the Commissioner's determination of no disability is vacated, and the matter is remanded for further administrative proceedings.

II. BACKGROUND

A. Procedural History

Plaintiff protectively filed an application for disability benefits on August 26, 2003. R. 75-77.*fn1 That application was denied and Plaintiff timely requested an oral hearing, which subsequently took place on December 2, 2004, with Administrative Law Judge ("ALJ") Thomas P. Zolezzi presiding. R. 193-221. Plaintiff, represented by counsel, appeared and provided testimony.

R. 193-221. A second, supplemental hearing took place on May 23, 2005, also in front of ALJ Zolezzi, in which Plaintiff, again represented by counsel, testified, and a vocation expert ("VE"), Dr. Peter Manzi, Ed.D., appearing telephonically, answered hypotheticals posed by the ALJ and Plaintiff's attorney. R. 222-72. ALJ Zolezzi issued a decision on August 4, 2005, in which he determined that Plaintiff is "not-disabled" under the Act. R. 12-19. On October 3, 2005, Plaintiff requested review of that decision by the Appeals Council. R. 8, 191. On August 17, 2006, when the Appeals Council denied review, R. 4-7, the ALJ's determination became the final decision of the Commissioner.

Plaintiff, acting through counsel, commenced this action on October 10, 2006. Compl. (Dkt. No. 1). The Commissioner filed an Answer on February 5, 2007. Dkt. No. 5. Both parties have moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). See Pl.'s Br. (Dkt. No. 15); Def.'s Br. (Dkt. No. 16).

B. Plaintiff's History

Plaintiff was born September 26, 1947, holds a bachelor's degree, and completed thirty hours of graduate work beyond his bachelors. He was 55 years old on July 1, 2003, the alleged onset date of his disability, and 57 years old at the time of his hearing.*fn2 R. 75, 88, 94, 201. Plaintiff complains of severe high frequency hearing loss and tinnitis (ringing in the ear) in both ears, which keep him from hearing and distinguishing any sound source when other ambient exists. R. 88, 124, 202. Prior to his alleged disability, Plaintiff had worked essentially without interruption since September of 1969 as a music teacher in public schools. R. 89. According to Plaintiff, he stopped working when he "could not hear clearly what an individual student was saying [and] had much trouble hearing an individual instrument in the band or an individual singer in the chorus. Also[] the ringing ha[d] gotten worse and was very distracting, etc." R. 88. Aside from its significant impact on Plaintiff's ability to perform his job, Plaintiff does not allege that his hearing loss has greatly limited his daily activities, which he reports to be varied and wide-ranging, though he notes that he does not go to noisy gathering places. R. 127-28. Plaintiff complains that his hearing loss was further exacerbated when someone standing nearby Plaintiff shot off a gun during a school assembly. R. 91, 205.

Plaintiff does not allege that his hearing loss impairs his ability to concentrate, remember, deal with stress, or maintain social interactions with others. See generally 123-30, 212-18. He does claim that the tinnitus makes concentration difficult and fatiguing, particularly when background noise, especially from multiple sound sources, are present, or when there is complete quiet. See, e.g., 227, 263-64.

C. Medical Records

1. Hearing Loss and Tinnitus

On July 17, 1991, Plaintiff went to Sunnyview Speech & Hearing Center for an audiology exam. R. 91, 137-42. The exam notes Plaintiff's hearing is normal bilaterally up to 2000 Hz at which point his hearing in the right ear "drops sharply to severe high frequency loss [at] 3000 Hz" and in the right ear"drops to a moderate to severe loss [a]t 4-8000 Hz." R. 137. Plaintiff received a hearing aide to help rectify that impairment. R. 91, 100, 137. He claims that the hearing aide has not helped. R. 129.

On August 29, 2003, Plaintiff underwent an audiology evaluation at Madison Hearing Center that revealed his hearing to be within normal limits from 250 to 2000 Hz with a mild sloping to severe high frequency sensorineural hearing loss from 3000 to 8000 Hz for the left ear; in his right ear, hearing was within normal limits from 250 to 1000 Hz with a mild precipitously sloping to severe sensorineural hearing loss from 2000 to 8000 Hz. Speech discrimination ability was noted as excellent bilaterally at comfortable loudness levels. R. 143-49. Dr. Megan McGuire diagnosed Plaintiff as "communicatively handicapped in regard to hearing acuity, especially in groups or in background noise[; ] includ[ing] a classroom setting," noted that the above results were "grossly consistent with test results obtained . . . on July 17, 1991." R. 143.

Plaintiff's primary care physician, Dr. Phillip Hunter, submitted a diagnosis that Plaintiff "has severe hearing loss and tinnitus, leaving him communicatively handicapped in regard to hearing acuity." R. 150. Dr. Ernest Lee, who saw Plaintiff on September 22, 2003, noted speech discrimination was 96% in both ears at 55 decibels, but found that Plaintiff has confirmed sensorineural hearing loss with the left side worse than the right. R. 159-67. He states that Plaintiff's high frequency hearing impairment leaves him unable to function as a musician or music teacher. R. 163. Dr. Lee encouraged amplification, noting that improvements have occurred in hearing aide technology since Plaintiff's previous attempt to use a hearing aide device. R. 167. However, Dr. Lee opined that if the hearing aide did not work, he did not believe there exists any other effective treatment. R. 167.

Dr. G. Spitz, M.D., a State Agency medical examiner, reviewed Plaintiff's file and reported on March 7, 2004 that Plaintiff suffered from a moderate impairment. He commented that Plaintiff's "RFC precludes work in high ambient noise environments or where good hearing is essential to job performance or safety. Claimant has the hearing necessary to avoid ordinary hazards in the work place." R. 174.

Roger Kuehnlenz provided a vocational assessment of Plaintiff on March 12, 2004. He notes that Plaintiff "is capable of physically and communicatively to perform a wide range of work where there is no high ambient noise and acute hearing is not essential to job performance." R. 175. He noted, however, that Plaintiff could not continue to perform as a music teacher. He provided three examples of medium unskilled jobs that he opined Plaintiff was capable of performing: Hospital Cleaner; Linen Room Attendant; and Golf Range Attendant. R. 175.

2. Musculoskeletal Impairment

Following his hearing, Plaintiff submitted a report from Dr. J. Ernest Mincy, M.D. R. 184-85. Dr. Mincy relates that he saw Plaintiff for a consultation on October 21, 1991. Plaintiff was "not in acute pain" and could "flex and extend his neck without any problem." Dr. Mincy diagnosed Plaintiff as suffering from a ruptured disc at 6-7 on the left side and opined that he may require surgery in the future. R. 185. Dr. Mincy's opinion is confirmed by MRI. See R. 189. Dr. Mincy noted that Plaintiff's discogenic disorder had not prevented him from continuing to work full time as a music teacher. R. 184. In connection with his application, Plaintiff went to St. Peter's Hospital for an examination on June 9, 2005. That exam revealed the same discogenic disease with disc space narrowing and osteophyte formation, but no slippage. R. 189.

On June 9, 2005, in connection with his application, Plaintiff went to Dr. Edward Sheid, Jr., M.D. for an assessment. R. 181-83. Dr. Sheid notes that Plaintiff was not in any pain or distress and had an unremarkable gait. R. 182. Dr. Sheid noted that Plaintiff's strength was 5/5, his reflexes were 2 and symmetrical, and he had mildly limited spine motion. R. 181-83.

Plaintiff also submitted a note from Dr. Della Croce, his chiropractor, dated January 19, 2005. That note states that "due to disc problem . . . it is recommended and advised not to lift over 10 lbs. and no repetitive motion of lifting the 10 lbs. during the course of the day." R. 187. Brad Elliot, another chiropractor, submitted a similar assessment on June 13, 2005. R. 180.

C. The Hearing

At his December 2, 2004 hearing, Plaintiff testified that he had tinnitus and severe hearing loss in both ears. Plaintiff stated that he had no problems standing, sitting, walking, bending, kneeling, squatting. He thought that he could lift between 50-70 pounds, and denied any problems grasping or holding things. Plaintiff noted that he experiences back pain that sometimes ...


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