United States District Court, D. South Carolina
KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE
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.
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.
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. 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.
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.
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. 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.
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. 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.
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.
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 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.
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.
William Stewart 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.
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.
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
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
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
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)).