United States District Court, D. South Carolina
Samuel L. Savage, Plaintiff,
Nancy A. Berryhill,  Acting Commissioner of Social Security Administration, Defendant.
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 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
January 7, 2015 decision, the ALJ made the following findings