United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
KAYMANI D. WEST FLORENCE, SOUTH CAROLINA UNITED STATES
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.
February 20, 2015,  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.
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.
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
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.
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
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.
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. 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.
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.
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.
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
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.
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.
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
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 ...