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Jackson v. Berryhill

United States District Court, D. South Carolina

February 14, 2017

Michael Jackson, Plaintiff,
v.
Nancy A. Berryhill, [1] Acting Commissioner of Social Security Administration, Defendant.

          ORDER

          KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE

         This social security matter is before the court pursuant to 28 U.S.C. § 636(c) and Local Civil Rule 83.VII.02 (D.S.C.) for final adjudication, with the consent of the parties, of Plaintiff's petition for judicial review. Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of a final decision the Commissioner of Social Security (“Commissioner”), denying his claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) pursuant to the Social Security Act (“the Act”). Having carefully considered the parties' submissions and the applicable law, the court affirms the Commissioner's decision, as discussed herein.

         I. Relevant Background

         A. Procedural History

         Plaintiff applied for DIB and SSI in May 2011, pursuant to Titles II and XVI of the Act, 42 U.S.C. §§ 401-403, and 380-83, et seq., alleging he became disabled on April 18, 2011. Tr. 212-21. His applications were denied initially, Tr. 84-85, and upon reconsideration, Tr. 116-19. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), Tr. 136-37, which was held on January 14, 2014, Tr. 30-65, after Plaintiff requested and received a postponement of the previously scheduled hearing, Tr. 164-65. In a decision dated February 21, 2014, the ALJ found that Plaintiff was not disabled within the meaning of the Act. Tr. 12-23. Plaintiff requested review by the Appeals Council, Tr. 11, and the Appeals Council denied Plaintiff's request for review on July 15, 2015, making the ALJ's decision the final decision for purposes of judicial review, Tr. 1-4. Plaintiff brought this action seeking judicial review of the Commissioner's decision in a Complaint filed on July 30, 2015. ECF No. 1.

         B. Plaintiff's Background

         Born in September 1962, Plaintiff was 48 years old on his alleged onset date of April 18, 2011. Tr. 243. In his Disability Report - Adult, Plaintiff indicated that he completed the 11th grade and did not attend special education classes.[2] Tr. 255-56. Plaintiff listed his past relevant work (“PRW”) as a machine operator for a cannery company (Oct. 2000-April 2011) and for a textile company (1981-1999). Tr. 256. Plaintiff indicated that a stroke and clogged artery on the right side limited his ability to work, and he stopped working because of these conditions on April 18, 2011. Tr. 255. In a Disability Report - Appeal dated October 31, 2011, Plaintiff indicated that his condition was worse, he had constant neck pain and left-sided weakness, and he could not sleep. Tr. 284. Plaintiff indicated he had new illnesses, injuries, or conditions since his last disability report and listed the following: “Left-sided pain; depression; sleep disturbance; difficulties with remembering, concentrating, and comprehending; dizziness; off-balance on the left side; left-sided numbness (face and hand); no appetite.” Id. In a subsequent Disability Report - Appeal dated May 3, 2012, Plaintiff indicated that he had “speech problems” and was told he had “stress around [his] heart.” Tr. 298.

         Medical records indicate that on April 18, 2011, Plaintiff presented to the Chesterfield General Hospital Emergency Department for evaluation of numbness in his left wrist and hand and the left side of his face. Tr. 381. Plaintiff had not had chest pain, shortness of breath, headache, neck pain, shoulder pain, or other complaints. Id. A CT scan of Plaintiff's brain did not reveal an acute abnormality and Plaintiff was discharged with instructions to follow-up with his primary care physician and to take an aspirin every day. Tr. 383. Plaintiff was admitted into Carolinas Hospital System in Florence, SC on April 29, 2011, and discharged on May 5, 2011, on a regimen of Plavix and aspirin. Tr. 434. A brain MRI on April 29, 2011, revealed the following impressions: “1. The flow void in the right cavernous carotid is absent indicating occlusion. 2. Acute infarcts in the deep white matter in the right frontal and parietal brain. 3. Some mild white matter changes in the left hemisphere.” Tr. 403. A consultation on that same date indicated Plaintiff had a stroke and he was given a transesophageal echocardiogram with negative results “for detection of intracardiac mass, thrombus, and shunt lesions.” Tr. 413-15.

         C. The Administrative Proceedings

         1. Plaintiff's Testimony

         Plaintiff appeared with his counsel for an administrative hearing on January 14, 2014. Tr. 30. In response to questions from the ALJ, Plaintiff confirmed that he was 51 years old, had no children, and lived with his wife in a mobile home. Tr. 36-37. Plaintiff testified that his wife is employed fulltime, and he does not have a current source of income. Tr. 37. Plaintiff stated that he has a driver's license but only drives once every six months to go to the doctor, which is about five miles from his home. Tr. 38. Plaintiff confirmed that the highest grade he completed in school was the eighth grade, he had no other vocational training, and he had not served in the military. Id. Plaintiff testified that he smoked “about a half a pack a day” and did not drink any alcohol. Tr. 39. Plaintiff stated that he has not worked since April 18, 2011, and has not collected any unemployment since that date. Id. Plaintiff stated that he worked for Carolina Canners and for Piece Dye Acquisition Corporation (“Piece Dye”) running a denim frame.[3] Id. After some discussion with the ALJ and VE regarding Plaintiff's duties at Piece Dye, Plaintiff confirmed the VE's understanding that Plaintiff's work was part of the finishing machine-tending operation. Tr. 41.

         Plaintiff was shown his medication list at Exhibit 20E and confirmed that he no longer took the sinus medication but took all the medications listing on the first page of the exhibit.[4] Tr. 41-42. Plaintiff testified that he has run out of his medication two or three times since he has been taking it. Tr. 42. The ALJ indicated a notation in the record that on August 2, 2013, Plaintiff was out of his medication, and Plaintiff confirmed that was correct. Tr. 43. Plaintiff testified that when he is out of his medication he is without them for about a month. Id. Plaintiff stated that his medication runs out because he does not have insurance or money to buy it. Id. Plaintiff testified that his wife buys his cigarettes. Id.

         Plaintiff testified that he gets up in the morning “about 7:55 a.m.” around the time his wife leaves the house for work. Tr. 43-44. Plaintiff testified that he stays at home alone along with his 95-pound Labrador. Tr. 44. Plaintiff stated that he no longer walks the dog because the dog pulls him down. Id. Plaintiff testified that while his wife is at work he tries “to clean up a little bit until [he] get[s] tired.” Id. Plaintiff stated that he vacuums, makes the bed, and sweeps the floor. Id. Plaintiff stated that he did not do any cooking, but he used the microwave and made sandwiches. Tr. 45. Plaintiff testified that his wife does the grocery shopping and other than going to the doctor he goes out to eat about once a month. Id. Plaintiff stated that he goes to bed at about 10:30. Id. Plaintiff testified that he can lift about 20 pounds, walk about a half a mile, stand for about an hour, and sit for about an hour. Tr. 45-46. Plaintiff stated that he feels he is unable to work because his “left side stay numb” from his head to his feet, and he has a clogged artery on the right side of his neck. Tr. 46.

         In response to a question from his counsel, Plaintiff testified that he only drives once a month because he had an experience when he “was driving to the doctor and [his] left hand went numb and it snatched the steering wheel and [he] got in a wreck.” Tr. 47. Plaintiff testified that he could read a newspaper but would have trouble explaining what he read. Id. Plaintiff stated he always had that problem, even when he was in school. Id. Plaintiff testified that when he was in school he took special education classes. Tr. 48. The ALJ interrupted and discussed with counsel that the record did not indicate Plaintiff was enrolled in special education classes. Counsel confirmed that the school records did not indicate special education classes, but that “he certainly had some problems, because he repeated the first grade[5] and he was socially promoted in the second grade. He didn't pass that either. . . . It looks like he passed the seventh and then spent two years in the eighth, so he was certainly having problems with school.” Id. The ALJ referenced the notation in the consultative examination that reported Plaintiff completing the seventh grade and then quitting due to being expelled for fighting. Tr. 49. The ALJ noted the discrepancy between the report and what Plaintiff told the consultant. Id.

         Counsel resumed questioning of Plaintiff and Plaintiff stated that since having a stroke in April of 2011 there has not been a time when he did not have numbness. Tr. 50. Plaintiff testified that because of the numbness it is hard to lift things, if he tries to clean house he gets tired “real fast, ” and his left leg goes to sleep. Id. Plaintiff clarified that he could vacuum or sweep for five- to-ten minutes before getting tired and needing to rest for about 15 minutes. Id. Plaintiff stated that he did not sleep well at night and that he slept for a total of three-to-four hours. Tr. 51. Plaintiff testified that because he is tired from not sleeping at night he takes an hour-and-a-half nap every day. Id. Plaintiff testified that he is able to hold a small item in his left hand once he gets a good grip on it. Id. Plaintiff's counsel noted that Plaintiff was wearing a soft Velcro brace on his hand and Plaintiff stated that he wore it because his hand would “start tremoring” and he “put that on to calm it down.” Tr. 51-52. Plaintiff testified that he could lift a 20-pound dumbbell in his left hand only if he also used his right hand. Tr. 52. Plaintiff testified that because of his left side numbness he is unable to walk more than a half mile, and walking a half mile takes him “a good 45 minutes.” Tr. 53. Plaintiff testified that since his stroke, if he gets up too quickly he will lose his balance. Id. As far as his personal care, Plaintiff testified that it is sometimes hard to hold a washcloth in his left hand, but he can tie his shoes and put on his socks and he can “barely” fasten buttons and zippers. Tr. 53-54. In addition to the left side numbness Plaintiff testified that he has headaches twice a week. Tr. 54. Plaintiff stated that to relieve the headaches he takes two aspirin and lies down for two hours. Id. Plaintiff stated that when his blood pressure is up he feels lightheaded and that he feels that way “all the time.” Tr. 55. Plaintiff stated that his doctor wants to run more tests on him but he has not done the tests because of lack of insurance and money. Id. Plaintiff testified that his wife has always been the one to keep up with the bills and checking account. Tr. 56. Plaintiff testified that while he is at home during the day, when he is not trying to do house work, he will “just sit around and relax.” Id. Plaintiff stated that he watches TV but after an hour his mind slips and he forgets what he is watching. Id. Plaintiff stated that he has problems remembering things. Tr. 57.

         2. VE's Testimony

         VE William Stewart[6] also testified at the hearing. The VE characterized Plaintiff's past work at the cannery company as a forklift driver or forklift operator as medium, with a specific vocational preparation (“SVP”) of 3, “which is the beginning level of semi-skilled work[, ]” with a representative Dictionary of Occupational Titles (“DOT”) number 921.683-050, which “also cross references in the DOT under industrial truck driver.” Tr. 59. The VE described Plaintiff's work in the textile company as “a rolling machine operator as part of this finishing process.” Id. The VE described the work as medium, SVP of 2, “which is unskilled work[, ]” and a representative DOT number 585.685-078. Id. The VE confirmed that both jobs were performed at the medium level, but as described by the worker the textile job could have overlapped into a heavy category. Tr. 59-60. The VE testified that the forklift job, although it had an SVP of 3, did not generate skills transferable to skilled or semi-skilled work. Tr. 60.

         The ALJ asked the VE to assume a hypothetical individual of Plaintiff's age, education, past work experience, and impairments status post CVA [cerebrovascular accident] with the following limitations:

[L]ift and/or carry 20 pounds occasionally, 10 pounds frequently, stand and/or walk about six hours in an eight hour work day, sit about six hours in an eight hour work day, never climbing ladders, ropes, scaffolds. Frequently climbing ramps, stairs, balancing, stooping, kneeling, crouching, crawling. Left upper extremity, handling, fingering, feeling. Limited to frequent with unlimited assistive use of the right upper extremity. Limited to unskilled work based on work history and educational attainment.

Tr. 60-61. The ALJ asked if the hypothetical individual would be able to perform Plaintiff's past work and the VE responded that “both of the past jobs would be ruled out.” Tr. 61. The VE stated that the hypothetical individual would be able to perform light unskilled work and identified the following jobs as examples: packer, DOT number 920.682-166, light, SVP of 2, regionally 2, 800 jobs, nationally 65, 000 to 80, 000 jobs; and machine tender, DOT number 649.686-022, light, SVP of 1, unskilled, regionally 1, 300 jobs, and nationally 54, 000 jobs. Tr. 61-62.

         In his second hypothetical the ALJ asked the VE to assume the same vocational factors and impairments as in the first hypothetical but with the following limitations:

[L]ift and/or carry 10 pounds occasionally, less than 10 pounds frequently, stand and/or walk at least two hours in an eight hour work day, sit for about six hours in an eight hour workday, never climbing ladders, ropes, scaffolds, frequently climbing ramps, stairs, balancing, stooping, kneeling, crouching, crawling. Left upper extremity handling, fingering, feeling. Limited to frequent with unlimited assistive use of right upper extremity. Unskilled work based on work history and educational attainment.

Tr. 62. The ALJ asked if the person would be able to perform Plaintiff's past work and the VE responded in the negative. Id. When asked if there was other work in the local or national economy the individual could perform the VE responded that there would be unskilled sedentary jobs available. Id. The VE identified the jobs of machine tender or operator, DOT number 781.682-010, sedentary, SVP of 2, 1, 400 regionally, and 51, 000 nationally; and table worker, DOT number 739.687-182, sedentary, SVP of 2, 3, 600 regionally, and 110, 000 nationally. Tr. 62-63. The ALJ posed a third hypothetical of an individual with the same vocational factors and impairments as in hypothetical number one, “except that individual is limited as stated in claimant's testimony, concerning all testimony to be credible.” Tr. 63. The VE testified that the individual would be unable to perform Plaintiff's past work. Id. The VE testified that the individual could perform work that was available in the local or national economy but would not be “productive on a reliable and a sustained basis based on limitations that frequent and that severe.” Id.

         Plaintiff's counsel asked the VE to clarify from the last hypothetical what part of Plaintiff's testimony would make him unreliable. Tr. 64. The VE responded that it referred to Plaintiff's inability to maintain stamina, the issues of his left hand and left numbness problems, and “basically, not being able to do sustained activities.” Id.

         D. The ALJ's Findings

         In her February 21, 2014 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, 2016.
2. The claimant has not engaged in substantial gainful activity since April 18, 2011, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairment: status post cerebrovascular accident (CVA) (20 CFR 404.1520(c) and 416.920(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, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except with no climbing of ropes, ladders, or scaffolds; frequent climbing of ramps and stairs, balancing, stooping, crouching, and crawling; and frequent handling, fingering, and feeling with the left upper extremity with unlimited assistive use of the right upper extremity. The claimant is further limited to unskilled work activity based on his work history and education.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on September 6, 1962 and was 48 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date. The claimant subsequently changed age category to closely approaching advanced age (20 CFR 404.1563 and 416.963).
8. The claimant has a limited education and is able to communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not an issue in this case because the claimant's past relevant work is unskilled (20 CFR 404.1568 and 416.968).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from April 18, 2011, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

Tr. 17-23.

         II. Discussion

         A. ...


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