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Chesney v. Berryhill

United States District Court, D. South Carolina

January 16, 2019

Fred Chesney, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.

          REPORT AND RECOMMENDATION

          SHIVA V. HODGES UNITED STATES MAGISTRATE JUDGE.

         This 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.

         I. Relevant Background

         A. Procedural History

         Plaintiff 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.[1] Tr. at 219-29. His applications were denied initially and upon reconsideration.[2] Tr. at 97-98, 127-30, 147-50, 156-63.[3] 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. 1].

         B. Plaintiff's Background, Medical History, and Education Records

         1. Background

         Plaintiff 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.

         2. Medical History[4]

         On 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.

         Dr. 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.

         During 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.

         Dr. 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 appropriately. Id.

         On 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.

         Also, 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.

         On 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.

         On 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.

         On 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.

         On 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.

         On 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. Id.

         On 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 tests. Id.

         On 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.

         On 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.

         On 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. Id.

         On 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.

         On June 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.

         On 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. Id.

         Plaintiff 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.

         With 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 skills.” Id.

         Dr. 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.
Yes.
2. Are the results of your test consistent with the attached school records?
Yes.

Tr. at 425. This reading assessment and questionnaire were provided to the ALJ prior to the hearing and located in Exhibit 12F.

         3. Education Records[5]

         During 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.

         C. The Administrative Proceedings

         1. The Administrative Hearing

         a. Plaintiff's Testimony

         At the 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.

         The following colloquy between Plaintiff and his attorney transpired:[6]

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?
A: Yes.
Q: Did you do that?
A: No. I got people to help me.
Q: Does your daughter ever help you with the reading and writing?
A: No, not much.

Tr. at 43-44.

         Plaintiff 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.[7] 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.

         When 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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 ...


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