ANDREW J. WISTRICH, Magistrate Judge.
Plaintiff seeks reversal of the decision of defendant, the Acting Commissioner of Social Security (the "Commissioner"), denying plaintiff's applications for supplemental security income ("SSI") benefits. The parties have filed a Joint Stipulation ("JS") setting forth their respective contentions.
On October 31, 2012, plaintiff protectively filed her SSI benefits application alleging that she had been disabled since November 4, 2010. [
The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error.
Although applied less rigidly to administrative than to judicial proceedings, the principles of
The Ninth Circuit has held that "all an applicant has to do to" to rebut the presumption of continuing non-disability is to "raise a new issue in the later proceeding."
Defendant argues that plaintiff "not only failed to prove greater disability than in 2012, she has completely ignored her burden" to "prove changed circumstances" and rebut the presumption of continuing non-disability. [JS 8]. However, plaintiff was not required to prove changed circumstances to rebut the presumption; she had only to allege the existence of a new impairment.
Since the ALJ erred in finding that plaintiff had not rebutted the presumption of continuing non-disability, his decision can stand only if it is otherwise supported by substantial evidence in the record and free of harmful legal error.
Plaintiff contends that the ALJ erred in failing to discuss or make any findings regarding the existence or severity of her ear and hearing problems. [JS 4-6].
At step two of the five-step sequential evaluation procedure, the Commissioner must determine whether the claimant has a severe, medically determinable impairment or combination of impairments.
The ALJ must determine whether a claimant's medically determinable impairment or combination of impairments significantly limits his or her physical or mental ability to do "basic work activities," which are "the abilities and aptitudes necessary to do most jobs," such as (1) physical functions like walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, and handling; (2) the capacity for seeing, hearing, and speaking; (3) understanding, carrying out, and remembering simple instructions; (4) the use of judgment; (5) responding appropriately to supervision, co-workers, and usual work situations; and (6) dealing with changes in a routine work setting. 20 C.F.R. §§ 404.1521, 416.921.
As noted above, plaintiff raised the issue of ear and hearing problems before the ALJ by testifying that she experienced right ear pain, hearing loss, and tinnitus since the beginning of 2014, about nine months before the hearing on her current SSI application. Her treatment records from San Bernardino County clinics indicate that she sought treatment for ear and hearing problems before that date In July 2013, plaintiff presented with complaints of ringing and pressure in her ears and decreased hearing that at that point already had been going on "for months." Her diagnoses included chronic bilateral ear tinnitus, chronic, with decreased hearing, and she was referred to audiology. [AR 996-997].
During an August 2013 follow-up visit, plaintiff again complained of hearing problems. She underwent an audiogram, which showed abnormalities in both the right and left ear at higher frequencies. She was referred to audiology and to an ear, nose, and throat specialist. [AR 992-993]. On January 16, 2014, plaintiff again sought treatment for ear problems. [AR 967-970]. She reported having seen an ear doctor, who told her she had fluctuating hearing loss due to fluid in her ear. [AR 967]. She "fail[ed] an audiogram here in clinic" but there was no "record of a formal audiology evaluation." [AR 968]. Her diagnoses included decreased hearing and serious otitis media by history. [AR 968, 970]. Plaintiff was advised to follow up with her primary care doctor. [AR 968].
In March 2014 and April 2014, plaintiff was seen for complaints of hearing problems, among other things. She was assessed with "intermittent" and "fluctuating" hearing loss and referred to audiology for a repeat audiogram. [AR 986-988]. In August 2014, plaintiff sought treatment for chronic, daily ringing in her ears associated with a history of ear pain, recently increasing in severity, and hearing loss. [AR 965]. A July 2014 audiogram showed hearing within normal limits, but the audiologist's impression was that plaintiff had a Eustachian tube defect. [AR 964]. Examination of her ears bilaterally revealed a right tympanic membrance that was "cloudy compar[ed] to the left side with some tenderness with otoscope maniuplation." [AR 965]. Plaintiff's assessment was possible recent otitis media (ear infection) with Eustachian tube defect. She was prescribed an antibiotic, Claritin, and Sudafed, and was referred to an ear, nose, and throat specialist. [AR 965-966]. Abnormalities were noted on an August 2014 right ear audiogram. [AR 964].
The ALJ did not mention or make any findings regarding ear or hearing problems in his December 2014 hearing decision. Plaintiff's subjective testimony and her medical records for a period of over one year reflecting her treatment for ear pain, tinnitus, and fluctuating or intermittent hearing loss document signs, symptoms, and laboratory findings establishing the existence of a medically determinable hearing impairment (and do not, as defendant contends, merely establish that she had an ear infection). Since plaintiff produced evidence of a medically determinable impairment, the ALJ was required to assess the severity of that impairment and to make appropriate findings at subsequent steps of the sequential evaluation procedure.
The ALJ's error cannot be considered harmless because hearing is a "basic work activity" that affects the ability to perform most jobs, 20 C.F.R. §§ 404.1521(b), 404.921(b), and because plaintiff's ear and hearing problems are relevant to her ability to perform her past relevant work as a telephone operator and an office assistant. The
Defendant's attempt to "fill in the blanks" in the ALJ's decision fails because the court is "constrained to review the reasons the ALJ asserts" for the denial of benefits and "cannot affirm the decision of an agency on a ground that the agency did not invoke in making its decision."
A district court may "revers[e] the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing[.]"
On remand, the Commissioner shall direct the ALJ to offer plaintiff the opportunity for a new hearing, take appropriate steps to develop the record, properly evaluate the medical evidence of record and plaintiff's subjective testimony, and issue a new hearing decision containing properly supported findings.
For the reasons stated above, the Commissioner's decision is