United States District Court, D. South Carolina
KAYMANI D. WEST UNITED STATES MAGISTRATE JUDGE.
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.
15, 2014,  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.
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,  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,  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.”
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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,