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Savage v. Berryhill

United States District Court, D. South Carolina

July 24, 2017

Samuel L. Savage, 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 on August 1, 2012, 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 July 2, 2009. Tr. 193-202. His applications were denied initially, Tr. 90-91, and upon reconsideration, Tr. 123-24. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), Tr. 141-42, which was held on October 28, 2014, Tr. 32-64. In a decision dated January 7, 2015, the ALJ found that Plaintiff was not disabled within the meaning of the Act. Tr. 14-26. Plaintiff requested review by the Appeals Council, Tr. 10-11, and the Appeals Council denied Plaintiff's request for review on March 9, 2016, making the ALJ's decision the final decision for purposes of judicial review, Tr. 1-5. Plaintiff brought this action seeking judicial review of the Commissioner's decision in a Complaint filed on April 12, 2016. ECF No. 1.

         B. Plaintiff's Background

         Born in December 1957, Plaintiff was 51 years old on his alleged onset date of July 2, 2009; 54 years old as of his protected filing date of August 1, 2012; and 55 years old as of his date last insured of March 31, 2013. Tr. 218. In his Disability Report - Adult, Plaintiff indicated that he completed the 12th grade and had not completed any specialized job training. Tr. 234. Plaintiff listed his past relevant work (“PRW”) as: heavy equipment operator, temporary worker, and truck driver. Tr. 235. Plaintiff indicated that he stopped working on July 2, 2009 because of the following medical conditions: lower back problems, numbness in back, right ankle pain, numbness in right side of back, complete numbness in right leg, pain and severe swelling around and in back of knees, and depression. Tr. 233. In a Disability Report - Appeal dated December 18, 2012, Plaintiff indicated that since September 5, 2012 he could “only stand or bend/stoop for a short period of time” and since November 3, 2012 he was having “much more pain in right leg and foot. Am now limping.” Tr. 270. In another Disability Report - Appeal dated October 1, 2013, Plaintiff indicated that in May and September of 2013 his right foot and right ankle “gave out” causing him to fall. Tr. 294. Plaintiff noted that it was “difficult for [him] to hold a job not being able to stand very long.” Tr. 298. He also indicated that since he last completed a disability report it had become “more difficult to stand or bend.” Tr. 299.

         C. The Administrative Proceedings

         1. Plaintiff's Testimony

         Plaintiff appeared with his counsel for an administrative hearing on October 28, 2014. Tr. 32. In response to questions from the ALJ, Plaintiff confirmed that he was 56 years old, graduated from the twelfth grade, and had not worked since July 2009 due to illness and injuries. Tr. 37-38. Plaintiff testified that he had problems with the nerves on his right side from his toe to his lower back. Tr. 38. Plaintiff testified that he is taking pain medication for the pain in his lower back that “helps a little bit.” Tr. 39. Plaintiff stated that he has memory loss as a side effect of the medication. Id. Plaintiff stated his back and leg give him trouble. Tr. 39-40. Plaintiff testified that he is also taking medication for depression and Dr. Selph recently changed his medication from Trazadone to something else. Tr. 40. Plaintiff testified that he felt “groggy” and his leg felt “like pins are sticking in the bottom of my foot and leg all during the day, the whole time.” Id. The ALJ noted that Plaintiff was using a cane and Plaintiff testified that Dr. Selph had prescribed the cane on his last visit. Id. Before being prescribed the cane Plaintiff stated he was “just holding onto anything [he] could get to.” Tr. 41.

         Plaintiff testified that he is a single parent and lived with his 16-year-old son in a ground-floor apartment. Tr. 41. Plaintiff stated that he had a driver's license and had driven himself to the hearing. Id. Plaintiff stated that it took him 15 minutes to get to the hearing and after sitting in the car his leg hurts and his thigh started to hurt. Tr. 42. Plaintiff testified that he was able to feed himself, but needed help getting out of the bath. He could put on his clothes if he could sit down and was capable of making himself a sandwich. Id. Plaintiff testified that he could make a bed and “sweep a little bit with one hand.” Tr. 43. Plaintiff stated that he could stand for five minutes before needing to sit down and, if he took his time, he could walk “down the block and back” which he estimated could be five or ten minutes. Id. Plaintiff testified that he could sit for an hour before his leg started to hurt, but if he got up and stretched for 15-to-20 minutes he could resume sitting. Tr. 44. Plaintiff stated that he did not lift anything because all his weight was on one leg. Id. Plaintiff testified that the heaviest thing he could lift would be “the forks and the spoons.” Tr. 45.

         In response to a question from his counsel, Plaintiff testified that he lies down for “an hour or two” to relieve the pain from sitting or standing too long-he described too long as “about an hour.” Tr. 46.

         The ALJ asked Plaintiff how he spent his days and Plaintiff testified that he goes to his mother's house around 4:00 in the afternoon after she returns home from Pell Mental Health Center and stays with her until his sister gets home from work. Plaintiff then returns home. Tr. 46-47.

         Plaintiff's counsel resumed questioning and asked Plaintiff about the “pins and needles” feeling in his feet. Tr. 47. Plaintiff stated the feeling was constant and interfered with his ability to concentrate because it was “very annoying.” Id. Plaintiff stated he was “always moving” his foot to alleviate the sensation but that it did not help. Id. Plaintiff testified that he can do household tasks for “[t]en minutes at the most” before needing to take a break. Tr. 48. Plaintiff described an incident “a couple of years ago” when he put his right foot in a tub of hot water but it felt “ice-cold.” Tr. 49. When he attempted to put his left foot in the tub he “had to snatch it out before [he] sank a toe in.” Id. Plaintiff stated that he can put his right foot in “scalding-hot water and don't even feel it.” Id. Plaintiff testified that his back pain is constant and is at a pain level of seven or eight on a ten-point scale, but a four or five when he takes his medicine. Id. However, Plaintiff stated that the pain level rises with activity. Tr. 50. Plaintiff stated that he did not have days that were worse than others, but that “all days are bad.” Id.

         2. VE's Testimony

         VE Stephen P. Davis also testified at the hearing. The VE asked for clarification regarding Plaintiff's listed job of heavy equipment operator. Tr. 51. Plaintiff stated that he was a forklift operator on a construction site using an industrial-sized forklift. Tr. 52. Plaintiff stated that he used his training from operating a forklift in a warehouse to using the forklift on a construction site. Tr. 53.

         The VE characterized Plaintiff's past work as a tow truck driver as Dictionary of Occupational Titles (“DOT”) number 919.63-026, semi-skilled with a specific vocational preparation (“SVP”) of 3, classified at the medium level, and performed at light. The heavy equipment operator was DOT 859.683-010, skilled, SVP 6, classified as medium, and performed at light. The two truck-driver positions were DOT 905.663-014, SVP 4, both classified as medium, and both performed at light. The last job of production assembly line worker (described by the DOT as production assembler) was DOT 706.687-010, unskilled at SVP 2, classified as light, and performed at medium. Tr. 53-54.

         The ALJ asked the VE to assume a hypothetical individual of Plaintiff's age, education, past relevant work experience, and impairments of “peripheral neuropathy, in particular severe peripheral neuropathy on the right lower extremity . . . with pain up into the lower back.” Tr. 55. The ALJ asked the VE to consider the residual functional capacity (“RFC”) assessment and limitations of the state agency physicians contained in the record at Exhibit 6A. Id. The VE testified that because of the limitations to the lower extremities none of Plaintiff's PRW would be available but there would be jobs at the unskilled level. The VE identified the following jobs at the medium level of unskilled work: hand packager, DOT 920.587-018, unskilled at SVP 2, medium, 525, 000 nationally, and approximately 31, 000 in South Carolina. Tr. 59. The VE stated that because of the physician's undefined limitations, he would apply 25% erosion to the job availability numbers. Id. The second job identified by the VE was floor waxer, DOT 381.687-034, unskilled, SVP of 2, medium, 358, 000 nationally, approximately 9, 000 in South Carolina with those numbers eroded by 25%. Tr. 59-60. A third job would be a cleaner of laboratory equipment, DOT 381.687-022, unskilled at SVP 2, medium, 345, 000 nationally, and approximately 41, 000 in South Carolina with a 25% erosion. Tr. 61.

         The ALJ posed a second hypothetical using Plaintiff's testimony “considering it to be fully credible.” Tr. 61. The hypothetical individual would be able to stand and/or walk for five-to-ten minutes at a time, sit for an hour at a time, lift nothing greater than the weight of a fork and spoon, and would need to lie down one-to-two hours every day during the eight-hour period. Tr. 61-62. The VE testified that this individual could not do Plaintiff's past work and no other jobs would be available. Tr. 62.

         Plaintiff's counsel asked the VE if there would be jobs available if a person were off task one-third of the time and the VE stated there would be “no jobs.” Tr. 62. Plaintiff's counsel clarified for the ALJ that off task meant the individual would be up for an hour and then would need to lie down for an hour-perhaps more, but a minimum of one-third of the time. Tr. 63. The VE stated that the “off-task limit is 15 percent. Anything above 15 percent precludes all work.” Id.

         D. The ALJ's Findings

         In his January 7, 2015 decision, the ALJ made the following findings ...


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