United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
V. HODGES UNITED STATES MAGISTRATE JUDGE.
appeal from a denial of social security benefits is before
the court for a Report and Recommendation
(“Report”) pursuant to Local Civ. Rule
73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action
pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to
obtain judicial review of the final decision of the
Commissioner of Social Security (“Commissioner”)
denying his claim for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”). The two issues before the court are
whether the Commissioner's findings of fact are supported
by substantial evidence and whether she applied the proper
legal standards. For the reasons that follow, the undersigned
recommends that the Commissioner's decision be affirmed.
filed an application for DIB on or about July 28, 2014, and
filed an application for SSI on November 21, 2014, in which
he alleged his disability began on June 15,
2014. Tr. at 219-29. His applications were
denied initially and upon reconsideration. Tr. at 97-98,
127-30, 147-50, 156-63. On November 10, 2016, Plaintiff had a
hearing before Administrative Law Judge (“ALJ”)
James M. Martin. Tr. at 36-72 (Hr'g Tr.). The ALJ issued
an unfavorable decision on January 30, 2017, finding
Plaintiff was not disabled within the meaning of the Act. Tr.
at 12-35. Subsequently, the Appeals Council denied
Plaintiff's request for review, making the ALJ's
decision the final decision of the Commissioner for purposes
of judicial review. Tr. at 1-5. Thereafter, Plaintiff brought
this action seeking judicial review of the Commissioner's
decision in a complaint filed on January 9, 2018. [ECF No.
Plaintiff's Background, Medical History, and Education
was 51 years old at the time of the hearing. Tr. at 26, 36.
He had completed eighth grade, but tested at approximately a
third-grade level. Tr. at 244, 423. His past relevant work
(“PRW”) was as a fast food cook and stocker. Tr.
at 64-65. He alleges he has been unable to work since June
15, 2014. Tr. at 219-29.
September 19, 2014, Bruce A. Kofoed, Ph.D. (“Dr.
Kofoed”), performed a consultative examination of
Plaintiff. Tr. at 379-82. Plaintiff presented with “a
long list of physical health problems” and reported he
had injured his back, hip, ankle, and arm when he fell thirty
feet from a ladder and landed on concrete several years
prior. Tr. at 379. Plaintiff also reported he was stabbed in
the throat when he attempted to protect another from abuse
and was taken to the emergency room for treatment previously.
Id. Plaintiff lost the fingers on his left hand due
to a wood working accident fifteen years prior, but
“continue[d] to write with his left hand, even though
he does not have fingers” and mentioned chronic pain
issues, such as “phantom pain.” Id.
Kofoed noted Plaintiff seemed “quite
undernourished” and there was a growth on his throat.
Tr. at 379. Plaintiff reported having slept poorly and
appeared depressed. Id. Plaintiff worried about his
daughter, who was twelve years old at the time, as he was her
main caregiver and they lived in a mobile home together.
Id. He reported previously working as a stocker for
grocery stores and as a painter. Tr. at 380. He also reported
having been arrested for driving under the influence
(“DUI”), stealing, and breaking into an
automobile in prior years, but that he had not been in
trouble recently. Id. Plaintiff had a valid
driver's license and drove regularly. Id.
Plaintiff had not received mental health care, but reported a
history of heavy alcohol use, with no recent abuse, and
admitted he drank three to four beers two to three times per
week. Id. Dr. Kofoed noted Plaintiff may drink more
than he admitted, but he had reduced his smoking by fifty
percent to one pack per day. Id.
the mental status examination, Dr. Kofoed noted Plaintiffs
speech was clear and logical and he did not appear to have
trouble hearing him, despite reported hearing problems with
his right ear. Tr. at 381. Dr. Kofoed also noted Plaintiffs
effort “was slightly variable on tasks” during
his cognition examination. Id. “He was able to
read the sentence, ‘the big dog chased the frightened
cat around the barn,' although he struggled with the
words ‘chased' and ‘frightened.'”
Id. Dr. Kofoed stated he “would estimate
[Plaintiffs] level of reading to be at approximately a 3rd
grade level, ” but “[n]o formal assessment was
attempted.” Id. Plaintiff was disoriented with
the date and day of the week. Id. Plaintiff did a
Rey 15-item Test and correctly recalled nine out of fifteen
items. Id. However, he struggled to state the months
of the year in reverse order and it “seemed quite
difficult for him.” Id. Plaintiff learned a
four-word list and recalled none of them independently or
with category prompting, but he recalled one of the words
with multiple choice prompting. Id. In addition, his
recall for nonverbal information was very poor, even with
substantial prompting. Id. Dr. Kofoed noted it was
his impression “that effort may have been somewhat poor
on these recall tasks.” Id.
Kofoed noted in his clinical functional assessment that
Plaintiff had significant health problems, including chronic
pain issues with his back, hip, ankle, and throat.
Id. For his activities of daily living
(“ADLs”), he cooked, cleaned, did laundry, took
care of his daughter, and drove. Id. He was reserved
socially, shopped independently, was able to engage in brief
interpersonal transactions without difficulty, and would
likely “be most comfortable working with things rather
than people.” Tr. at 382. With regard to
concentration, persistence, and pace, Dr. Kofoed noted:
Effort was somewhat variable on tasks. I would estimate his
level of intellectual functioning to be in a high borderline
range. He does struggle with arithmetic skills. He does have
a driver's license. Recall today was poor for verbal and
nonverbal information, but he does seem capable of doing a
simple repetitive task from a cognitive perspective.
Certainly, his physical health issues are significant and
would need to be considered in this case.
Id. Dr. Kofoed's diagnostic impressions included
major depression (not otherwise specified), probable
borderline intellectual abilities (with no formal assessment
attempted, noting he had a driver's license), and back,
hip, and ankle pain with throat issues and the loss of
fingers. Id. Dr. Kofoed opined Plaintiff would
likely benefit from assistance to manage his funds
September 24, 2014, Gordon Early, M.D. (“Dr.
Early”), performed a consultative examination of
Plaintiff. Tr. at 384-86. Dr. Early indicated Plaintiff was
“primarily applying for disability due to the sequelae
of a work-related accident in 2008” as a painter when
he fell off a ladder and hurt his back, left hip, heel,
wrist, and elbow. Tr. at 384. Plaintiff reported he returned
to work in 2010 as a stocker at Bi-Lo, but quit due to back
pain. Id. Plaintiff also reported having lost
fingers on his left hand due to a table saw accident in the
1990s, but he “could still do a number of activities
with his stub fingers, digits 2 through 5, ” and
continued to use his “left hand for writing, most
tools, and non-power grip activities.” Id.
However, he was “slower in writing than he was prior to
1999.” Id. Dr. Early reviewed Plaintiffs
medical and social history. Tr. at 384-85. Dr. Early noted
Plaintiff completed the eighth grade and “was in
special education in English and Math throughout school,
” but he could “read our demographic form,
” was able to drive a car, and delivered furniture for
sixteen years while in his twenties and thirties. Tr. at 385.
Dr. Early also noted Plaintiff was “able to write with
the left hand” and he was “actually pre-dextrous
in writing with the left hand.” Id. Dr.
Early's assessment included persistent back, left hip,
and heel pain, a prior throat injury, and the loss of his
left fingers. Tr. at 385-86.
on September 24, 2014, Olin Hamrick, Jr., Ph.D. (“Dr.
Hamrick”), a state agency psychologist consultant
completed a psychiatric review technique (“PRT”)
questionnaire and a mental residual functional capacity
(“RFC”) assessment. Tr. at 87-88, 92-94. Dr.
Hamrick opined Plaintiff had a mild restriction of ADLs,
moderate difficulties in maintaining social functioning, and
moderate difficulties in maintaining concentration,
persistence, and pace, but no repeated episodes of
decompensation. Tr. at 87-88. Dr. Hamrick assigned great
weight to Dr. Kofoed's opinion and concluded Plaintiff
retained the mental capacity to perform simple, routine, and
repetitive unskilled tasks. Tr. at 88. Dr. Hamrick opined
Plaintiff had various limitations due to his borderline
intellectual functioning, but concluded he was able to
understand, remember, and carry out short and simple
instructions, but not detailed instructions. Tr. at 92-94. In
addition, Plaintiff would perform best in situations that did
not require on-going interaction with the public, but he
could be aware of normal hazards and was able to take
appropriate precautions. Id.
October 30, 2014, Mary Lang, M.D. (“Dr. Lang”), a
state agency physician consultant completed a physical RFC
assessment. Tr. at 89-92. She opined Plaintiff could lift,
carry, push, or pull fifty pounds occasionally and
twenty-five pounds frequently, with a limitation in his right
lower extremity due to calcaneal pain. Id. He could
sit, stand, or walk for about six hours in an eight-hour
workday with postural, manipulative, communicative, and
environmental limitations. Id.
December 9, 2014, Plaintiff presented to St. Luke's Free
Medical Clinic (“St. Luke's”) with complaints
of back pain and chronic coughing. Tr. at 388-89, 415. The
treating physician noted Plaintiff had fallen two stories a
few years prior and the injury continued to cause low back
pain. Id. It was also noted Plaintiff had tenderness
over his left lumbosacral spine and he smoked a pack of
cigarettes per day. Id. Plaintiff was diagnosed with
chronic bronchitis with acute exacerbation and prescribed
Meloxicam and Ciprofloxacin. Id.
January 8, 2015, Xanthia Harkness, Ph.D. (“Dr.
Harkness”), a state agency psychologist consultant
completed a PRT and mental RFC upon reconsideration of
Plaintiffs case in which she affirmed the initial ratings by
Dr. Hamrick. Tr. at 103-04, 108-11, 117-18, 122-25.
January 30, 2015, Plaintiff had an x-ray of his left hip that
showed mild left hip osteoarthritis. Tr. at 391. Lumbar spine
x-rays showed multilevel degenerative disc disease
(“DDD”), subtle grade 1 spondylolistheses at
L5-S1, and degenerative hip changes. Tr. at 392.
February 3, 2015, William Hopkins, M.D. (“Dr.
Hopkins”), a state agency physician consultant
completed a physical RFC upon reconsideration in which he
opined Plaintiff could lift, carry, push, or pull twenty
pounds occasionally and ten pounds frequently, with a
limitation in his right lower extremity due to calcaneal
pain. Tr. at 105-08, 119-22. He could sit, stand, or walk
about six hours in an eight-hour workday with postural,
manipulative, communicative, and environmental limitations.
September 18, 2015, Plaintiff presented to St. Luke's for
back pain and complaints that Meloxicam was not providing
relief. Tr. at 394-96, 414, 416. The treating physician noted
Plaintiff had chronic obstructive pulmonary disease
(“COPD”), but he continued to smoke. Id.
Plaintiff was diagnosed with back pain and possible COPD,
prescribed Tramadol, and referred for a chest x-ray and blood
September 21, 2015, Plaintiff presented to Spartanburg
Medical Research for a pulmonary function test and screening
evaluation with a blood test. Tr. at 397, 417.
November 2, 2015, Plaintiff presented to St. Luke's for a
follow up of his COPD and review of his chest x-ray. Tr. at
413. His lungs were clear, but he was advised to quit smoking
and continue Ventolin for COPD. Id.
February 4, 2016, Plaintiff presented to St. Luke's with
complaints of lower back pain. Tr. at 410, 412. The treating
physician noted Plaintiff continued to smoke one pack per
day, but Ventolin appeared to improve his COPD. Id.
It was also noted Plaintiff had Transaminitis, and he was
instructed to stop drinking. Id. Plaintiff was
continued on Ventolin and prescribed Mobic for his back pain.
February 16, 2016, Plaintiff presented to Spartanburg
Regional Emergency Center with epigastric pain. Tr. at
398-409. Plaintiff admitted he had drunk a six pack of beer
and took Tramadol just prior to feeling sharp pain in his
stomach that lasted one hour. Id. Plaintiffs
physical examination revealed findings were within normal
limits. Id. Ultrasounds showed Plaintiffs liver was
hyperechoic compatible with fatty infiltration and an
eight-millimeter cyst located at the inter polar region of
the right kidney, but his gallbladder, visualized aorta,
inferior vena cava, pancreatic head, and body were within
normal limits. Tr. at 407-08. At discharge, Plaintiff denied
abdominal pain and was released with instructions to return
if the symptoms re-occurred. Tr. at 400.
9, 2016, Plaintiff presented to St. Luke's and complained
of lower back and left hip pain. Tr. at 411. Plaintiff was
prescribed Gabapentin and Tramadol. Id.
October 28, 2016, Caleb Loring, Psy.D. (“Dr.
Loring”), performed a reading assessment of Plaintiff
upon his attorney's request. Tr. at 423-24. Dr. Loring
noted “[s]ome of [Plaintiffs] past academic records
were provided” for his review. Tr. at 423. Plaintiff
had a driver's license, but reported he took the exam
orally. Id. Dr. Loring noted Plaintiff
“attempted to complete office paperwork independently
and was able to write out some simple responses. He seemed to
be able to understand the gist of some of the questions on
the paperwork. This examiner assisted him in answering some
of the more complex questions.” Id. Dr. Loring
also noted Plaintiff did not appear to exaggerate his
symptoms and provided good effort on all tasks presented.
reported he completed the eighth grade, was enrolled in
special education classes, and dropped out of school in ninth
grade. Id. Dr. Loring confirmed Plaintiffs
enrollment and he was socially promoted according to his
school records, noting some standardized test scores in ninth
grade indicated his reading skills were at the third-grade
level. Id. Dr. Loring noted Plaintiff was suspended
indefinitely from high school due to “drugs” and
his middle school records reflected primarily
“F's” as grades. Id.
regard to employment, Plaintiff reported his last job was as
a stocker at Bi-Lo for approximately six years, and he
delivered furniture prior to that position. Id. Dr.
Loring noted, “[i]t would seem as though [Plaintiff]
has never had a job that would require literacy
Loring administered the Word Reading and Spelling Subtests of
the Wide Range Achievement Test, 4th edition
(“WRAT-4”), on which Plaintiff obtained standard
scores of 60 and 61, respectively, which were both in the
“extremely low range.” Id. His reading
score translated to a grade equivalency of 2.6 and his
spelling score translated to 2.4. Id. “He
could read and pronounce some very simple words. He was able
to spell some simple words as well.” Id. Dr.
Loring noted the results suggested Plaintiffs “reading
and spelling skills were similar to those of a child in the
second grade” and his performance was “consistent
with his simple written responses on office paperwork,
” his enrollment in special education classes, and the
standardized test scores administered previously, indicating
“his skills [were] at roughly the 3rd grade
level.” Tr. at 424. Dr. Loring also noted Plaintiff had
“probably not used his reading and writing skills
consistently for quite some time” and it
“seem[ed] as though [he] never had a job that has
required the use of these skills.” Id. In his
summary, Dr. Loring opined,
[r]esults indicate that [Plaintiff] would probably struggle
to read simple low-literacy materials designed for adults. He
would probably need repeated oral instructions, materials
made mostly of illustrations, or audio/video tapes to learn
tasks. His writing skills were very poor, and he could only
respond to simple questions on office paperwork with simple
answers. [Plaintiff] presented as someone who is functionally
illiterate. He would be unable to read and comprehend simple
instructions and lists reliably and consistently. The scores
obtained during this assessment appear to be consistent with
his educational history and his enrollment in special
education classes. It would seem as though he has never had a
job that would require significant literacy skills.
Id. In addition, Dr. Loring completed a
questionnaire that stated:
1. Is [Plaintiff] illiterate under the following definition:
Illiteracy means the inability to read or write. We consider
someone illiterate if the person cannot read or write a
simple message such as instructions or inventory lists even
though the person can sign his or her name. Generally, an
illiterate person has had little or no formal schooling.
2. Are the results of your test consistent with the attached
Tr. at 425. This reading assessment and questionnaire were
provided to the ALJ prior to the hearing and located in
1971-1972, Plaintiff was in first grade and failed most of
his classes. Tr. at 258. During 1972-1973, he earned slightly
higher grades. Id. During 1974-1975, Plaintiff's
school records reflect he was in third grade and earned
grades ranging from “B-” to “F.” Tr.
at 239, 242. During 1975-1976, Plaintiff was enrolled in
special education classes. Tr. at 239. During 1976- 1978,
Plaintiff received a “C-” or “C” year
average in reading. Tr. at 249-50. In April 1979, Plaintiff
took an achievement test and received total scores in
reading, language, and arithmetic of 3.6, 4.2, and 3.7,
respectively, with a total score of 3.9. Tr. at 244. His
school records reflect he attended some resource classes and
was socially promoted from the eighth grade. Tr. at 243. On
November 4, 1981, while in the ninth grade, Plaintiff was
withdrawn from school due to being “[s]uspended
indefinitely/[d]rugs.” Tr. at 247-48.
hearing on November 10, 2016, Plaintiff testified he
completed the eighth grade, but had not earned a general
educational development (“GED”) certificate. Tr.
at 36, 43. He explained he lived with his fourteen-year-old
daughter in a trailer. Tr. at 43, 51.
following colloquy between Plaintiff and his attorney
Q: Can you read and write?
A: A little.
Q: A little, not very well?
A: Not very well.
Q: Okay. When you applied to Social Security, you had to fill
out some forms. Do you remember that?
Q: Did you do that?
A: No. I got people to help me.
Q: Does your daughter ever help you with the reading and
A: No, not much.
Tr. at 43-44.
testified he worked as a cook at a Waffle House from 1992 to
2003. Tr. at 45-47. Then, he worked at Bi-Lo as a
stocker. Tr. at 47. Plaintiff testified the
position required him to regularly lift ten pounds, stock
shelves with various food items, and train others to do so
correctly. Tr. at 49. He explained the cases had stock
numbers on them, and he would make sure the individuals
placed the items in the correct locations on the shelves.
Id. Plaintiff responded he quit working at Bi-Lo due
to the amount of walking and carrying it required. Tr. at
50-51. Plaintiff testified he worked odd jobs, such as
painting, planting, and mowing, for cash between 2008 and
2014, but it was not steady work and did not produce
significant income. Tr. at 44-45, 51.
Plaintiff's attorney inquired about what prevented him
from working full-time, Plaintiff responded his back, ankle,
and lack of energy. Tr. at 59. Plaintiff explained he
remained left-handed, despite losing four fingers on that
hand due to an accident approximately fifteen years prior.
Tr. at 51. Plaintiff testified he was able to adapt and
continue to use his left hand at his jobs. Tr. at 51-52. He
noted his throat injury caused him to cough up phlegm and it
would become sore and difficult to swallow. Tr. at 52. He
also experienced shortness of breath and treated it with an
inhaler every day. Tr. at 53. He testified he received
treatment at St. Luke's for his throat and breathing
issues, but acknowledged he still smoked, despite being
advised to quit. Tr. at 52-54. He reported he broke his ankle
in 2009, and it continued to hurt when he walked for half a
mile or more. Tr. at 49-50, 54. Plaintiff also received
treatment at St. Luke's for re-occurring back and hip
pain. Tr. at 55. Plaintiff explained he had not been to St.
Luke's “in a while” at the time of the
hearing because he had to “re-fill forms back out again
because that thing expired or something, ” and he
needed to re-apply. Tr. at 58. When asked why Plaintiff had
not re-applied, he explained he had not yet returned to the
facility. Id. He noted he did not go to the
doctor's office often due to finances and insurance
issues. Tr. at 63.
acknowledged he received treatment at Spartanburg Regional
Health Center in February 2016 for stomach pain after
consuming a six pack of beer and Tramadol, but explained it
was not typical for him to drink that amount and his issues
caused by drinking, such as a DUI and incarceration, were in
his past. Tr. at 56-57. Plaintiff attributed the stomach pain
to taking Tramadol on an empty stomach. Tr. At 58.
testified he went to Dr. Loring's office “on [his]
own” and completed the tests that he gave him. Tr. at
59. He had a driver's license and explained he took the
test for it over the phone. Id. He stated he did not
have any problems driving. Id.
testified, on a typical day, he worked around the yard,
cleaned up the house, washed clothes, assisted his sister
with their adopted children, watched television, cooked, and
cared for his daughter. Tr. at 60. The ALJ confirmed
Plaintiffs daughter was fourteen years old and in ninth
grade. Tr. at 61. Plaintiff described the various activities
that his daughter participated in through school or church
that he attended. Tr. at 61-62. Plaintiff explained his
sister had custody of his daughter, but his daughter lived
with him in the ...