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Bilton v. Berryhill

United States District Court, D. South Carolina

January 3, 2019

Richard Joseph Bilton, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.



         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”). 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 February 20, 2015, [1] Plaintiff protectively filed for DIB under Title II of the Act, 42 U.S.C. §§ 401-433, alleging he became disabled on December 16, 2014. Tr. 206-07. After being denied initially, Tr. 106, and at the reconsideration level, Tr. 127, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), Tr. 144-45. ALJ John T. Molleur conducted an administrative hearing on March 22, 2016, taking testimony from Plaintiff and vocational expert (“VE”) Art Schmitt. Tr. 44-89. The ALJ denied Plaintiff's claim in a decision dated June 28, 2016. Tr. 18-34. Plaintiff requested review of the decision from the Appeals Council seeking dire need case processing because his house was in foreclosure. Tr. 1-17. On August 19, 2016, the Appeals Council denied the request for review making the ALJ's June 28, 2016 decision the Commissioner's final decision for purposes of judicial review. Tr. 9. After granting Plaintiff an extension of time to file a civil action, Tr. 1, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a Complaint filed September 13, 2017. ECF No. 1.

         B. Plaintiff's Background

         Plaintiff was born in September 1970, and was 44 years old as of his alleged onset date of December 16, 2014. Tr. 256. In his Disability Report-Adult Plaintiff indicated that he completed the 11th grade and did not complete any type of specialized job training, trade or vocational school. Tr. 261. Plaintiff identified his past relevant work (“PRW”) as co-owner and owner of a car dealership. Tr. 262. Plaintiff indicated he stopped working on December 16, 2014, because of his medical conditions and his conditions caused him to make changes in his work activity on June 1, 2013. Tr. 261. Plaintiff identified his medical conditions as: severe depression, intestine/bladder/testicle issues, high blood pressure, asthma, pancreatitis, panic disorders/anxiety, diabetes, ADHD, restless legs/sleep apnea, and chronic sweating. Tr. 260.

         In a Disability Report-Appeal dated August 10, 2015, Plaintiff's attorney indicated that as of June 2015 Plaintiff's depression and testicular pain had worsened and his white blood cell and platelet levels had decreased. Tr. 301. Also noted was a new medical condition of “Edema in Ankles” that occurred the same date. Id. The following information was noted as changes in Plaintiff's daily activities due to physical or mental conditions:

Can sit for approximately 15 minutes and stand in one place for approximately 30 minutes due to pain in feet, Difficulty walking due to Shortness of Breath, Claimant has to have help with household chores, grocery shopping, and yardwork due to shortness of breath and swelling, Does not drive due to health conditions, Difficulty with memory, states that he is forgetful, Difficulty interacting with people and being in public places, states that he dislikes being in crowds, leaves his home only to go to physicians appointments, claimant states that he sleeps most days.

Tr. 306.

         C. The Administrative Hearing

         The administrative hearing was held on March 22, 2016 before ALJ Molleur in Charleston, South Carolina. Tr. 44. Plaintiff appeared with counsel; VE Schmitt also appeared and testified. Id.

         1. Plaintiff's Testimony

         In response to questioning from the ALJ Plaintiff testified that he lived with his wife and two teenaged children both of whom had ADHD but functioned independently. Tr. 53. Plaintiff stated that his wife recently started working outside the home, and she had a second job with Lakeside Animal Hospital where she has worked part-time for the past 27 years. Id. Plaintiff testified that he completed the 11th grade and did not obtain his GED. Tr. 54. Plaintiff stated that he “grew up in the automobile business” and in 1985 he started working for his family-owned dealership when he was 15 years old. Id. Plaintiff stated that he worked in that business until it was sold in 2009. Id. Plaintiff testified that he started work washing cars and he ended up as a general manager with 60 employees and owning ten percent of the business. Tr. 54-55. The other percentages of the business were held by Plaintiff's father (60%), uncle (20%), and brother (10%). Tr. 55. Plaintiff testified that after the business was sold he worked for the new owner for “about three months” and in 2011 went into a 50/50 partnership in a car lot with a different individual. Id. Plaintiff worked with this partner from November 2011 until June 2013 when they “had a falling out” and Plaintiff opened his own car lot. Tr. 56. Plaintiff testified that he operated the new business with his wife from August 2013 until December 16, 2014 when he “just couldn't handle it anymore.” Id. Plaintiff stated the business closed and his wife “wrapped everything up” in February 2015. Tr. 57. The ALJ asked Plaintiff about a treatment note that indicated he was working in April 2015. Tr. 57-58. Plaintiff stated that he was not working during that time although he was drawing disability payments for six months through an insurance policy. Tr. 58-59. Plaintiff testified that he had not yet filed tax returns for 2014 and 2015 but had requested extensions. Tr. 59. The ALJ indicated he would keep the file open for 14 days and requested copies of the extensions Plaintiff obtained from the IRS. Tr. 60.

         In response to questions from his attorney Plaintiff testified that the problems he was having leading up to his decision to stop working were “mental loss and just couldn't even remember pretty much what [he] was, what [he] had done, what [he] done [sic] with paperwork, figures that [he] had given people.” Tr. 60. Plaintiff affirmed that he was having problems remembering conversations he had with customers and keeping up with office paperwork. Id. Plaintiff testified that in September 2015 he began to be unable to complete a full day of work and he would go home and lie down. Tr. 61. Plaintiff testified that he sometimes would be able to return to work but other times his father and wife would have to stay and run the car lot. Id. Plaintiff stated that he was seeing Dr. Constance Alexander for his depression and they were trying different medications. Id. Plaintiff testified that after trying seven or eight different medications they decided to try transcranial brain stimulation.[2] Id. Plaintiff testified that he took that treatment for eight weeks but it helped “very little.” Tr. 61-62. Plaintiff stated that his symptoms include memory loss and no energy and doctors determined that his “white blood cell count was way below normal.” Tr. 62. Plaintiff testified that he was having problems with focus and concentration and with the ability to finish things that he had started. Id. Plaintiff stated that his symptoms have “gotten worse in the last three months.” Id. Plaintiff stated that he used to drive his children to school but now he may just get them up in the morning and then go back to bed. Tr. 63. Plaintiff stated that he no longer drives and he has stopped doing yard work. Id. Plaintiff stated that his wife or his father would drive him to Mount Pleasant for the transcranial treatments. Id. Plaintiff indicated that doctors wanted him to return for another session. Id. Plaintiff testified that the treatments did not help him enough to return to work but he “could go outside and maybe walk around the yard and let [his] dog out a minute. Maybe blow the driveway off or something.” Tr. 64. Plaintiff testified that he is still having bad days when he will start crying for no reason. Id. Plaintiff testified that he is currently taking 11 medications, most of them for mental issues. Id. Plaintiff testified that he has problems with sleep apnea and hypertension and has dizziness “[e]veryday just about.” Tr. 65. Plaintiff attributed his dizziness to his medications. Id. Plaintiff stated that he experiences dizziness “at least four or five days a week” and some days the episodes last 15-20 minutes and some days the episodes last for hours. Id. Plaintiff stated that he has crying spells “at least three days a week.” Tr. 66. Plaintiff testified that he sleeps 14 hours a day or longer and he is “up and down at night” to use the bathroom. Id. Plaintiff stated that he goes to bed at 9:30 p.m., wakes up at 7:00 a.m. to help his wife wake up the children, and then goes back to bed and goes to sleep. Tr. 67. Plaintiff stated that he is sleeping so much because of the depression, not because of his medications. Id. Plaintiff stated that he does not help with getting the children up every day and there are some days when he will “sleep right through.” Id. Plaintiff testified that on the days he gets up at 7:00 he does not get dressed; he remains in his pajamas. Tr. 68. Plaintiff testified that he is sometimes able to do household chores “but not very many times it gets accomplished.” Tr. 69. Plaintiff stated that he is unable to focus enough to watch a movie on TV and noted that due to lack of money the family no longer has TV. Id. Plaintiff stated that he does not read books and noted that he was diagnosed with ADHD when he was an adult and put on medication. Tr. 69-70. Plaintiff stated the medication gives him a little energy but he did not feel that it helped him to focus. Tr. 70. Plaintiff confirmed that he still struggles with memory issues. Id. Plaintiff indicated that he has problems with pancreatitis. He also indicated that he stopped drinking alcohol in 2009. Id. Plaintiff confirmed that he still has abdominal pain and discomfort. Tr. 71. Plaintiff testified that he was put on opiate medication for restless leg syndrome and he became addicted to the pills. Id. Plaintiff stated that he went to the hospital “for depression and for the pills, but mainly for depression.” Tr. 72. Plaintiff testified that he would be unable to work an eight-hour day doing any type of work because he would be unable to focus for any period of time. Id. Plaintiff stated that he stays in bed because of the depression. Id. Plaintiff stated that he had job offers but felt he could not do them. Tr. 73. Plaintiff recounted an incident when his wife went out of town for a few days and he was unable to care for his children and during her absence he “may have eaten two or three peanut butter and jelly sandwiches.” Tr. 73-74.

         The ALJ asked Plaintiff who had offered him work and he testified a “conversion company.” Tr. 74. He stated that the company takes new cars and converts them “into high performance cars or lifted trucks and stuff.” Tr. 75. Plaintiff stated that he had emailed the company asking about tires and wheels taken off cars and the owner called him because he needed a sales person. Id. Plaintiff stated that he told the owner he was about to go on a family vacation and that he would let him know when they got back. Id. Plaintiff testified that the conversation took place in May or June of 2015 and he had contacted the company because he “needed a set of tires for one of my cars that has now gotten repossessed.” Id. Plaintiff also stated that one year earlier he had been offered a job to work at the car dealership that his father leased to another individual but Plaintiff felt unable to do the work. Tr. 76. Plaintiff stated that he did not think he could work for even a couple of days a week. Tr. 76-77. Plaintiff stated the family vacation was to Tavi Island, Georgia. Tr. 77.

         In response to questions from his attorney Plaintiff testified that during that vacation he stayed in the room most of the time. Tr. 77. Plaintiff stated that his wife packed for the trip but that he loaded the car. Tr. 78. The ALJ asked if it was on that trip when he was rushed to the hospital because he was in the sun on the beach the entire week and was sunburned. Id. Plaintiff stated that he went to the hospital when he got back because his ankles had swollen from fluid. Plaintiff stated that if he got sunburned it was when he “may have been riding on the golf cart to get to lunch or something one day.” Id. In response to his attorney Plaintiff stated that his mother-in-law and his brother-in-law paid for the trip and even if he did not want to go on the trip his wife would not have left him home alone. Tr. 79. Plaintiff testified that in the past he had tried to harm himself and hoped they would hurry and get something done with the transcranial treatment because his medications were not working. Id. Plaintiff stated that his wife had called to have his hearing date “sped up” because his house was going into foreclosure. Tr. 79-80.

         The ALJ asked about an exhibit in the record from the summer of 2015 that reported “an episode of sunburn after being on the beach all week . . . with some confusion.” Tr. 80. The ALJ asked if that was the trip to Tavi Island and Plaintiff responded that he did not go on the beach at Tavi Island but he got sunburned after an hour while on a kayaking trip with his wife. Id. The ALJ asked if part of the reason he stayed in the room was because of the sunburn and Plaintiff responded that the reason he stayed in was “just the depression.” Id.

         2. VE's Testimony

         Dr. Art Schmitt testified as the VE and identified Plaintiff's past work as “Owner, car sales . . . DOT of 185.167-046, SVP:7, skilled, light. Detailer, DOT of 915.687-034, SVP:2, unskilled, medium . . . .” Tr. 82. The ALJ clarified with Plaintiff his work as a detailer, sales manager, and general manager. Plaintiff testified that he was the general manager from 2005 to 2009 and was the used car sales manager from 1993. Tr. 83. The VE testified there would not be a separate DOT number for the used car manager and owner. Id. Plaintiff testified that he went to auctions and bought all of the inventory and that is how he became well-known in the car business. Id.

         The ALJ posed the following hypothetical to the VE:

Let's assume a person of Claimant's age, education and work background. Such a person is limited to only light work as defined in the regulations. He's able to climb ropes, ladders or scaffolds only occasionally. . . . Other postural activities [are] limited to frequent. There should be no more than occasional exposure to extremes of cold. There should be no direct exposure to vibrations. Work is restricted to involving no more than occasional decision making or changes in the work setting.

Tr. 84. The ALJ asked if such an individual could perform Plaintiff's past work and the VE responded in the negative. Id. The ALJ asked if there was any unskilled work such a person could perform. The VE responded affirmatively and identified the following jobs: storage facility clerk, DOT 295.367-026, SVP:2, unskilled, light, 4, 400 jobs in South Carolina, 416, 000 jobs nationally; ticket taker, DOT 344.667-010, SVP:2, unskilled, light, 1, 260 jobs in South Carolina, 104, 000 jobs nationally; and coupon redemption clerk, DOT 290.477-010, SVP:2, unskilled, light, 200 jobs in South Carolina, 14, 700 jobs nationally. Tr. 84-85. The VE confirmed this was a representative and not exhaustive list. Tr. 85.

         The ALJ asked the VE to further assume that the individual is limited to only sedentary work with the same restrictions as in the first hypothetical but with the additional restriction of “no more than brief and incidental contact with members of the general public.” Tr. 85. Plaintiff interjected that he “did that every day. Not a problem.” Id. The ALJ also noted that there would be “no tandem work or other work in close coordination with others, although he can tolerate proximity to others in the work setting.” Id. The ALJ asked if there was unskilled work the person could perform and the VE identified the following positions:

Surveillance system monitor, SVP:2, unskilled, sedentary, DOT of 379.367-010, 550 in South Carolina, 74, 400 nationally. Weight tester, DOT of 539.485-010, SVP:2, unskilled, sedentary . . . . 8, 800 in South Carolina, 430, 000 nationally. Car wash attendant, DOT of 915.667-010, SVP:2, unskilled, light, 1, 126 in South Carolina, 202, 000 nationally.

Id. The VE testified this was a representative list. Tr. 86. The ALJ asked the VE to “assume further that such a person due to chronic fatigue, pain, inability to sustain focus or any other complication arising from his diagnosed conditions or any other combination thereof, would be expected to be off task on the average of 60 to 90 minutes per day over and above scheduled breaks.” Id. The ALJ asked if the person would be able to perform any of the jobs identified or any other work in the national economy; the VE responded the person could not work at the listed jobs or at any of Plaintiff's past work and would be unemployable. Id. The ALJ asked “if for similar reasons such an individual would be absent in the aggregate of two to three days per month on an unscheduled basis, would such a person be able to perform any of the jobs you've listed ...

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