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Bailey v. Colvin

United States District Court, D. South Carolina

May 5, 2015

Aubrey Eugene Bailey, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

KAYMANI D. WEST, Magistrate Judge.

This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his claim for Disability Insurance Benefits ("DIB") pursuant to the Social Security Act ("the Act"). For the reasons that follow, the undersigned recommends that the Commissioner's decision be reversed and remanded for further administrative action.

I. Relevant Background

A. Procedural History

On October 6, 2010, [1] Plaintiff protectively filed for DIB under Title II of the Act, 42 U.S.C. §§ 401-433, alleging he became disabled on October 1, 2009. Tr. 124-25. After being denied initially and at the reconsideration level, Tr. 60-67, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), Tr. 73-74. The ALJ conducted a hearing on July 10, 2012, taking testimony from Plaintiff and Vocational Expert ("VE") Roger Decker. Tr. 30-58. Representing Plaintiff at that hearing was his attorney, J. Greg Tharp. The ALJ denied Plaintiff's claim in a decision dated August 15, 2012. Tr. 14-29. Plaintiff requested review of this decision from the Appeals Council, Tr. 12, which denied his request on November 21, 2013, Tr. 1-4, making the ALJ's August 15, 2012 decision the Commissioner's final decision for purposes of judicial review. Plaintiff brought this action seeking judicial review of the Commissioner's decision in a Complaint filed January 27, 2014. ECF No. 1.

B. Plaintiff's Background

Born on April 23, 1964, Plaintiff was 45 years old on his alleged onset date. Tr. 181. He completed four or more years of college and Plaintiff's past relevant work ("PRW") was as an airfield operations specialist in the military from February 1985 until October 2009. Tr. 185. In applying for DIB, Plaintiff listed the following conditions that limit his ability to work: "Diabetes Mellitus Type II, Fatty Liver; Major Depressive Disorder; Deficit Hyperactivity Disorder; Post-traumatic Stress Disorder (PTSD); High Blood Pressure; Thyroid; Gastroesophageal; Sleep Apnea; Degenerative thoracolumbar spine with annular disc bulge; Degenerative change cervical spine; and Diabetes, insomnia, degenerative thoracolumbar spine, Etc." Tr. 184. Plaintiff indicated he stopped working on July 15, 2009 because of his conditions and he retired from the military. Plaintiff received a 100% service-connected disability rating from the Department of Veterans Affairs ("VA"). Tr. 144-77.

C. Administrative Proceedings

1. Plaintiff's Testimony

On July 10, 2012, Plaintiff appeared with counsel at an administrative hearing held in Augusta, Georgia and testified regarding his application for DIB. Tr. 30-58. VE Decker also appeared and testified at the hearing. Id.

The ALJ noted that Plaintiff's questionnaires were completed by Dr. Cary Diver of the VA. Tr. 36. Plaintiff testified that Dr. Diver is his general physician and he has been seeing him since December 2009. Id. The ALJ noted that in Plaintiff's pre-discharge examination Plaintiff stated he was actively seeking employment. Tr. 37. Plaintiff testified that he was looking for employment initially but "started getting worse with the nonsleeping" and he now has problems with arthritis in his throat, which causes pain if he speaks for long periods of time. Id. The ALJ inquired into Plaintiff's diagnosis of post-traumatic stress disorder ("PTSD") and determined that it was both service-related and from Plaintiff's own personal experience. Tr. 38. Plaintiff testified that he was taking medication for depression and to help him sleep. Plaintiff stated he was unaware of any side effects because he took the medication at night. Id. Plaintiff testified that he was "relatively steady the last couple of months" in managing his diabetes. Tr. 39. The ALJ asked Plaintiff if there was any job he thought he could do. Plaintiff testified that "[t]he amount of time that it takes me to do things and to talk to people, to try to catch my thoughts, it's a problem. I get very aggravated and agitated." Id. Plaintiff stated that he felt like he might have a stroke and that sometimes he felt sharp pains in his head. Tr. 39-40. Plaintiff testified that his 16-year-old daughter has a learning disability that requires speech therapy, he takes care of his mother who has lung cancer, and his wife "has depression problems." Tr. 40-42. Plaintiff testified that after he drops he daughter off at school he is with his mother "throughout the entire day because [he has] to run her back and forth" to appointments. Tr. 40. Plaintiff testified that his mother, who lived several miles from him, could cook for herself but that he had to drive her everywhere, including doctors' appointments, and help her clean up. Tr. 41.

Plaintiff testified that in addition to his appointments with Dr. Diver, he also sees Dr. Barfeld and a psychologist, Dr. Lee McKenzie. Tr. 42. Plaintiff also stated that he sees other doctors for his "gastro problem" and for his heart. Id. Plaintiff's attorney asked Plaintiff why he could not work if he was capable of taking care of his mother. Tr. 43. Plaintiff stated that he felt he had a duty to care for his mother, but he still has his underlying problems and has to "bear it." Id. Plaintiff testified that he "had a breakdown where the cops had to come to the home." Tr. 44. The police called the VA, and he was given a new therapist. Id. Plaintiff stated that in the last year he had "quite a few" medical interventions. He was hospitalized for his heart and for his diabetes, and he sees Dr. McKenzie for his mental problems. Tr. 44-45. Plaintiff testified his mental and physical problems could be divided "50/50" and he has "pain all the time." Tr. 45. On a scale of one to ten, Plaintiff described his pain on good days at "about a five" and bad days well above that. Tr. 46. Plaintiff stated he has 12-to-15 bad days a month and the worst pain, in his spine or throat, could get up to eight or nine on the pain scale. Tr. 47.

In response to the ALJ, Plaintiff stated he has not done any work for pay since leaving military service. Tr. 48. Plaintiff stated he attends church on Sundays and tries to go to the men's meeting at the church on Mondays. Id. Plaintiff indicated he drove 20-to-25 minutes to attend the administrative hearing. Tr. 49. Plaintiff stated he owns a computer and uses it regularly to "look up stuff for [his] mom and [his] wife" and he helps his daughter with her schoolwork. Id. Plaintiff testified he has an email address and Facebook account but did not know his status. Id. Plaintiff stated he does not play video games because he cannot concentrate or sit that long. Tr. 50. Plaintiff stated that he likes to read to relax and mainly reads the Bible. Id. Plaintiff testified that doctors have recommended that he not have surgery on his back, but he is unsure what their plans are with regard to the arthritis in his throat. Tr. 51. Plaintiff testified that he has been losing weight and he does not know why. His doctors are concerned with his weight loss and will be administering tests to determine why Plaintiff is losing weight. Id.

2. VE Testimony

VE Decker also testified at the hearing. VE Decker identified Plaintiff's PRW was that of an air operations manager, which would be the civilian title for his work, DOT number 248.387-010, light, SVP of 6, skilled. Tr. 53. The VE noted that the evidence indicated Plaintiff lifted 30 pounds frequently and 100 pounds occasionally so the job "would probably be heavy in his exertional level, or at least medium as he performed the job." Tr. 54.

The ALJ asked the VE to "assume an individual of the same age, education, and work history as [Plaintiff], where such individual is limited to sedentary work and to simple, routine, repetitive tasks and a relatively static work environment. That is to say a work environment with few workplace changes, where such changes are introduced gradually, and where such an individual has no work at unprotected heights or around hazards, and this includes no climbing of ladders, ropes, or scaffolding." Tr. 54. When asked if such an individual could perform Plaintiff's past work, the VE responded in the negative because of the exertional level. The VE opined there would be work at the sedentary, unskilled level based on the specific functional limits, and identified the following jobs: bench hand, DOT number 715.684-026, sedentary, SVP of 2, unskilled, 2, 300 jobs in South Carolina, approximately 150, 000 in the national economy; table worker, DOT number 739.687-182, sedentary, SVP of 2, unskilled, approximately 6, 100 jobs in South Carolina, approximately 740, 000 in the national economy; patcher, DOT number 723.687-010, sedentary, SVP of 2, unskilled, 3, 000 jobs in South Carolina, approximately 530, 000 in the national economy. Tr. 54-55.

The ALJ asked if there was work available if she added the additional requirement that the "individual be allowed to shift positions at will, including shifting from seated position to standing or back again, with less than 10 percent disruption from the workday." Tr. 55. The VE responded that the individual could perform the jobs he previously listed, but the limitation would "probably result in approximately a 10 percent reduction in the number of jobs available." Tr. 55-56. The ALJ asked if there was work such an individual could perform if the individual was off task for 20 percent of the workday. Tr. 56. The VE responded that "if a person is off task 20 percent of the workday he would not be able to meet the production requirements of work and therefore could not perform any of the jobs that [he] listed, cannot perform any work that exists in the national economy." Id. Plaintiff's counsel asked the VE what would be the "most tolerable" absentee rate for the jobs he identified. Tr. 57. The VE stated that "this 20 percent that the Judge has indicated here would be a good suggestion of the absentee rates, which would be one day a week." Id.

When asked if he had anything else to bring to the ALJ's attention, Plaintiff stated that he was unsure if it was noted in the record but he has a "very bad memory" and his short term memory is "shot." Tr. 57.

II. Discussion

A. The ALJ's Findings

In her August 15, 2012 decision, the ALJ made the following findings of fact and conclusions of law:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2014.
2. The claimant has not engaged in substantial gainful activity since October 1, 2009, the alleged onset date (20 CFR 404.1571 et seq. ).
3. The claimant has the following severe impairments: plantar fasciitis; ankle spurs; degenerative joint disease; diabetes; gout; degenerative disc disease; anxiety; depression (20 CFR 404.1520(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, ...

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