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Maurer v. Berryhill

United States District Court, D. South Carolina

February 20, 2019

Clarence Dale Maurer, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          ORDER

          KAYMANI D. WEST UNITED STATES MAGISTRATE JUDGE.

         This 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 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 for the reasons discussed herein.

         I. Relevant Background

         A. Procedural History

         On May 15, 2014, [1] Plaintiff protectively filed for SSI under Title XVI of the Act, alleging a disability onset date of January 1, 2003. Tr. 178-86. After being denied initially, Tr. 104, and upon reconsideration, Tr. 115, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), Tr. 129-30. The ALJ conducted a hearing on September 9, 2016, taking testimony from Plaintiff and Vocational Expert (“VE”) Carroll Crawford. Tr. 45-93. Representing Plaintiff at that hearing was his attorney, W. Grady Jordan. Tr. 45. The ALJ denied Plaintiff's claim in a decision dated February 13, 2017. Tr. 16-39. Plaintiff requested review of this decision from the Appeals Council, Tr. 172, which denied his request on December 15, 2017, Tr. 1-6, making the ALJ's February 2017 decision the Commissioner's final decision for purposes of judicial review. Plaintiff brought this action seeking judicial review of the Commissioner's decision in a Complaint filed January 30, 2018. ECF No. 1.

         B. Plaintiff's Background

         Plaintiff was born in April 1972 and was 42 years old when he filed his application for SSI on May 15, 2014, and 30 years old as of alleged onset date of January 1, 2003. Tr. 209. In his form Disability Report-Adult dated May 23, 2014, Plaintiff indicated he completed the eighth grade, did not attend special education classes, [2] and did not complete any specialized job training, trade, or vocational school. Tr. 214. He listed his past relevant work (“PRW”) as production/light industrial, restaurant cook, and carpet cleaner. Id. Plaintiff indicated he stopped working on January 1, 2003 because of his medical conditions that he described as diastasis, [3] hypertension, and herniated disc in back. Tr. 213. Plaintiff indicated he was 5'8” tall and weighed 350 pounds. Id. In a Disability Report-Appeal dated December 12, 2014, Plaintiff indicated a change in his condition noting that since September 1, 2014 he was being treated for breakouts of yeast on his legs. Tr. 233. Plaintiff indicated that he “hurt continuously” but that he was “able to take care of most personal needs, showering, etc.” Tr. 236. Regarding changes to his daily activities Plaintiff indicated: “Not able to walk hardly at all anymore.” Id. In the “Remarks” section of the report Plaintiff indicated that his “belly hurts all the time; like a constant belly ache. I'm not supposed to lift anything over a pound.” Tr. 237.

         C. Administrative Proceedings

         On September 9, 2016, Plaintiff appeared with counsel at an administrative hearing in Greenville, South Carolina and testified regarding his application for SSI. Tr. 45. VE Carroll Crawford also appeared and testified at the hearing. Id.

         1. Plaintiff's Testimony

         In response to questions from the ALJ Plaintiff testified that since 2014 he lives alone in a mobile home; prior to that he lived with his wife and one child. Tr. 53. Plaintiff stated that his father owns the mobile home, so he does not have to pay rent. Tr. 54. Plaintiff testified that he completed the seventh grade and left school in the eighth grade. Id. Plaintiff stated that he failed the third grade and that was when his “mother died at a young age and everything got on a haywire.” Id. Plaintiff stated that his last job was working full-time for Ampro as a screwing machine operator. Id. Plaintiff stated that prior to that he worked for four or five months as a grill cook for Krystal in 2007 or 2008 before they closed. Tr. 55. Plaintiff also reported doing carpet installation in 1999 or 2000 in Myrtle Beach. Id. Plaintiff testified that his driver's license was reinstated in 2006, and when he was working for Ampro his girlfriend drove him back and forth to work. Tr. 56.

         In response to questions from his attorney, Plaintiff testified that it took him three times to pass the written test for his driver's license. Tr. 56. Plaintiff stated that the first time the test was read to him and he failed it, the second time he tried to read it on his own and he failed it, and the third time his sister went through the driving book with him and he was able to pass the test. Tr. 56-57. Plaintiff testified that he does not read “real good” and he can print but he cannot write in cursive. Tr. 57. Plaintiff also remarked that most of the things that he writes are not spelled correctly because he “can't spell.” Id. Plaintiff confirmed that although he started, he did not finishthe seventh grade, and the last grade he completed was the sixth grade. Tr. 57-58. There was some discussion about what grade Plaintiff actually completed in school as there is information in the record that indicated Plaintiff completed the eighth grade. Plaintiff acknowledged that his sister helped him complete the online Social Security forms, but he was unable to recall what grade he completed. Tr. 58-61. Plaintiff testified that he was in special education classes throughout elementary and middle school. Tr. 61.

         The ALJ asked Plaintiff why he left school and Plaintiff testified that his family broke up when his mother died. Tr. 62. The ALJ asked for clarification as Plaintiff's prior testimony was that he failed the third grade when his mother died. Plaintiff testified that his mother died in 1984 when he was 12 years old, but he did fail the third grade. Id.

         In response to questions from his attorney Plaintiff testified that he had email on his phone that was set up by the telephone company but that he never used it. Tr. 62. Counsel asked about a notation in the record where Plaintiff was seeking assistance because he was taking care of his disabled wife and child. Tr. 63. Plaintiff testified that he divorced in 2014 but when he was married his wife did the cleaning, cooking, and shopping, along with Plaintiff's father. Id. Plaintiff testified that his wife “really took care of herself” but that he sometimes had to provide wound care related to recurring staph infections. Tr. 64. Plaintiff testified that since his divorce he spent time with his daughter on the weekends, but she had been unable to visit on the weekends lately because of the distance between where they lived. Tr. 65.

         Plaintiff stated that his last job ended when the company moved and after that he “really started having problems with [his] stomach.” Tr. 65. Plaintiff testified that he did not go to the doctor because he did not have insurance. Id. Plaintiff testified that he thought he had an ulcer, so he was taking over-the-counter medications and was looking for work. Tr. 66. Plaintiff stated that “as the months went by, the pain progressed and it just kept on and kept on and kept on.” Id. Plaintiff stated that he went to a doctor who wanted to do an endoscopy, but Plaintiff was afraid and did not want it done. Id. Plaintiff testified that at that time he did not have a family doctor and did not have health insurance, so when he went to the doctor he paid out of pocket. Tr. 67. Plaintiff stated that he went to the emergency room (“ER”) multiple times related to his stomach pain and the ER referred him to a stomach specialist. Tr. 67-68. Plaintiff stated that he was eventually given a hospital sponsorship so that he could go to the doctor, but it expires every year. Tr. 68.

         Plaintiff testified that he has chronic yeast infections in his rectal area that cause extreme itching and doctors have not been able to give him any medication to take the yeast away. Tr. 69. Plaintiff testified that he is currently using a cream that helps some with the itching. Tr. 70. Plaintiff stated that if he gets hot and sweaty the itching increases and “it washes the medicine off and it will just itch.” Tr. 71. Plaintiff testified that his stomach never stops hurting and certain movements will cause his stomach to push out due to a rupture in the wall. Id. Plaintiff stated that sitting back or standing too long will cause pain. He also testified that he sleeps for only an hour or so at a time because when he tries to turn over his stomach bulges. Tr. 72. Plaintiff stated that bending down is “not impossible but it hurts real bad.” Id. Plaintiff stated that he uses a heating pad to help with the pain and takes the medications Norco and gabapentin. Tr. 72-73. Plaintiff testified that he does not have any side effects from the Norco, but the gabapentin makes him “feel drunk.” Tr. 73.

         Plaintiff stated that he spends most of the day sitting on the couch watching TV. Tr. 74. Plaintiff stated that his father cooks or brings him something to eat, and his sister visits twice a week and she cooks and cleans. Tr. 74-75. Plaintiff stated that his father does the grocery shopping and sometimes his sister will go to Walmart for him. Tr. 75. Plaintiff stated that sometimes he will accompany his father grocery shopping and will use a motorized cart because he cannot walk very long without being “in excruciating pain.” Tr. 76. Plaintiff stated that he can do laundry if his father or sister move the clothes from the washer to dryer. He stated that bending into the washing machine pushes against his stomach, but he is able to take the clothes from the dryer and fold them. Id. Plaintiff stated he does not do any yardwork and his father hires someone to do the yardwork for all the property his father owns. Tr. 77. Plaintiff confirmed that he used to ride motorcycles but stopped riding in the ‘90s. Id. Plaintiff stated that he plays Xbox games on the weekends with his nephew. Tr. 77-78. Plaintiff stated that he can shower but he is unable to get in and out of the bathtub. He testified that he can dress himself, but he does not tie his shoes. Tr. 78. Plaintiff stated that he can walk for five minutes but after that his stomach cramps and his legs hurt. Id. Plaintiff stated that he could sit comfortably for about an hour. Tr. 79. He stated that if he leaned against something he could stand for ten minutes, but if he had to stand up straight he could stand for only five minutes before he started hurting. Tr. 80. Plaintiff testified that the heaviest thing he could lift would be a half-gallon of milk-anything heavier makes his stomach hurt. Id.

         Plaintiff testified that he has a Facebook account that was set up by his sister and he uses it every day. Tr. 81. Plaintiff remarked: “I'm not dead. I'm hurting.” Id. Plaintiff stated that he has two discs in his back that have “come out of their place and they pinch [his] sciatica nerve.” Id. Plaintiff stated that he has constant pain in his back and legs. Id. Plaintiff testified that last year he was given an epidural nerve block that helped, but it lasted only a month. Tr. 81-82. Plaintiff stated that he was 5'8” tall and weighed 362 pounds. Tr. 82. When asked if he would know if he was given the correct change Plaintiff stated that he does not count his change but if he had to count it he would “have to lay it down to count it.” Tr. 82-83. Plaintiff testified that he is “up three or four times a night using the bathroom” but he does not have to go as often during the day. Tr. 83. Plaintiff testified that he sleeps in intervals of an hour or hour-and-a-half at a time. Id. Plaintiff stated that he is unable to sleep during the day. Id. Plaintiff testified that he has tried to lose weight but with the amount of food stamps that he gets he is unable to eat right because the healthy food is higher priced. Tr. 83-84. Plaintiff stated that although his father cooks for him, his father “eats weird” so they do not eat the same meals. Tr. 84. Plaintiff stated that he eats at McDonald's twice a week. Tr. 85. Plaintiff stated that he has not been to the movies in years, he does not go on vacation, and although he is a member of a church he has not been to church service in about four months. Tr.85. Plaintiff testified that he does not go to visit friends, but they will come to see him. Id. Plaintiff testified that with his medicine, and if he is not doing anything, he would describe his stomach pain as a 5 on a scale of 1-to-10; without his medicine it would be an 8. Tr. 86. Plaintiff stated that if he is on his medicine and he makes a movement that causes his stomach to hurt, the pain will go from a 5 to a 7 or 8. Id. Plaintiff testified that he does not take illegal drugs and he does not take anyone else's medication. Tr. 87. Plaintiff stated that since he has been seeing the pain management doctors he has not had to go to the ER other than when he had pneumonia earlier in the year. Id.

         2. VE's Testimony

         The VE identified Plaintiff's PRW as a screw machine operator as medium and skilled with SVP 5, and Dictionary of Occupational Titles (“DOT”) number 604.382-014. Tr. 88. The ALJ asked the VE to assume “a hypothetical individual of a younger age with a limited education and past relevant work as a screw machine operator.” Tr. 89. The ALJ posed the following Hypothetical Number 1:

[I]n the course of an eight-hour workday in two-hour increments with normal and acceptable work breaks this person could perform work at the sedentary exertional level as defined in the rules and regulations. This person can never climb ladders, ropes, and scaffolds. This person can occasionally climb ramps and stairs, kneel, crouch, and crawl. This person can occasionally stoop and lift within the exertional level from floor to waist, but can frequently stoop and lift within the exertional level from waist height and above. This person can frequently balance. This person can occasionally be exposed to extreme cold, extreme heat, wetness, and hazards that we would associate with unprotected dangerous machinery or unprotected heights. This person has sufficient concentration in persistence and pace to understand, remember, and carry out simple routine tasks in a low stress work environment that we will define as being free of fast paced or key dependent production requirements involving simple work-related decisions and occasional independent judgment skills and occasional workplace changes.

Tr. 89. The VE confirmed that Plaintiff's PRW could not be performed but that other unskilled sedentary jobs would be available and identified the following: assembler, sedentary and unskilled with SVP:2, DOT number 734.687-018, 350, 000 jobs in the United States; bench hand worker, sedentary and unskilled with SVP:2, DOT number 715.684-026, 84, 000 in the United States; weight tester in a laboratory setting, sedentary, unskilled with SVP:2, DOT number 539.485-010, 90, 000 in the United States. Tr. 89-90.

         The ALJ's Hypothetical Number 2 added the limitation to Hypothetical Number 1 that the “person is also further limited to jobs that require very little literacy skills.” Tr. 90. The ALJ asked if there was work that could be performed and the VE responded that the same representative jobs from the first hypothetical would be available. Id. For Hypothetical Number 3 the ALJ added two more limitations related to time off task and absenteeism as follows:

So in addition to the limitations set forth, this person could maintain that concentration, persistence, and pace for 75 percent of the workday. Now, this could be . . . mental or physical, but the end result would be that they would be off task for an average of 25 percent of the workday beyond normal work breaks. Additionally, the person would also be absent from work an average of three or more days per month.

Tr. 91. The ALJ asked if there was any work that could be performed with those limitations and the VE responded in the negative and noted that “off task or absences, either one would eliminate fulltime work in my opinion.” Id. The VE noted that his answer was based on his experience of dealing with employers as the DOT does not address the issue. Id.

         Plaintiff's counsel asked if there would be any jobs if “an individual is limited to less than two hours sitting in an eight-hour day and less than a total of two standing and walking in an eight-hour day”; the VE responded in the negative. Tr. 92. Counsel had no further questions for the VE. Id.

         The ALJ indicated that he would consider whether to send Plaintiff out for a mental consultative examination or for literacy testing but indicated that he was putting the case on hold for two weeks to allow Plaintiff to supplement the file with additional records. Tr. 92-93.

          II. Discussion

         A. The ALJ's Findings

         In his February 13, 2017 decision, the ALJ made the following findings of fact and conclusions of law:

1. The claimant has not engaged in substantial gainful activity since May 15, 2014, the application date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: spinal disorder, diastasis recti/ventral hernia, obesity, right knee degenerative joint disease, candida infection, and learning disability (20 CFR 416.920(c)).
3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, ...

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