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Rowell v. Saul

United States District Court, D. South Carolina

August 6, 2019

Franklin Daniel Rowell, Plaintiff,
Andrew M. Saul, Commissioner of Social Security, [1] Defendant.



         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 December 31, 2012, [2] Plaintiff protectively filed for SSI under Title XVI of the Act, alleging a disability onset date of March 15, 2012. Tr. 139-44. The record contains a Disability Determination and Transmittal with an SSI filing date of September 19, 2012 for a primary diagnosis of “Other Fractures of Bones” and a secondary diagnosis of “Aortic Aneurysm.” Tr. 38. This Determination reflects an initial denial dated June 28, 2013. Id. This claim was denied on reconsideration on November 15, 2013. Tr. 54. The record contains another Application for SSI with a filing date of May 7, 2014. Tr. 145-67. A Disability Determination and Transmittal with the May 2014 filing date indicates a primary diagnosis of “Other Diseases of Circulatory System” and a secondary diagnosis of “Organic Mental Disorders (Chronic Brain Syndrome).” Tr. 71. The Determination reflects an initial denial of this claim on December 19, 2014, Tr. 71, and a denial upon reconsideration on March 27, 2015, Tr. 73.

         Plaintiff requested a hearing before an ALJ, Tr. 119, and the ALJ conducted a hearing on February 7, 2017, taking testimony from Plaintiff and Vocational Expert (“VE”) William Stewart, Tr. 705-48. Representing Plaintiff at that hearing was his attorney, Brett Owens. Tr. 705. The ALJ denied Plaintiff's claim in a decision dated March 28, 2017. Tr. 74-93. Plaintiff requested review of this decision from the Appeals Council. Tr. 131. On December 29, 2017, the Appeals Council granted Plaintiff's request for review of the ALJ's decision in a Notice of Appeals Council Action. Tr. 133-38. The Appeals Council noted that, in addition to his application for SSI, Plaintiff had filed a Title II claim for Disability Insurance Benefits (“DIB”) on September 19, 2012.[3] Tr. 134. The Appeals Council addressed Plaintiff's DIB claim in addition to his SSI claim, considered the medical evidence of record and the hearing recording, and indicated its plan to adopt the ALJ's SSI findings for Plaintiff's DIB claim, which had determined Plaintiff was not under a disability from his alleged onset date of March 15, 2012 through the ALJ's decision date of March 28, 2017. Tr. 137. The Appeals Council gave Plaintiff 30 days to submit additional evidence or ask for appearance before the Appeals Council. Tr. 137. The Appeals Council did not receive comments or additional evidence subsequent to its notice of proposed action and on March 5, 2018 entered its unfavorable final decision finding that Plaintiff was not entitled to DIB or SSI. Tr. 8-16. Plaintiff brought this action seeking judicial review of the Commissioner's decision in a Complaint filed April 13, 2018. ECF No. 1.

         B. Plaintiff's Background

         Plaintiff was born in December 1975 and was 37 years old when he filed his application for SSI on December 31, 2012, and 36 years old as of the alleged onset date of March 15, 2012. Tr. 200.

         Plaintiff's medical records reflect that he was involved in a motorcycle collision on March 26, 2012, when he was intoxicated and drove his motorcycle through a fence. Tr. 593. Plaintiff was admitted to the hospital with a traumatic aortic arch tear, C1 left lateral mass fracture, left medial malleolus fracture, and left first through fifth metatarsal fractures. Id. Plaintiff underwent several surgeries and was discharged from the hospital on April 9, 2012. Tr. 593-95.

         In his form Disability Report-Adult dated June 26, 2014, Plaintiff indicated he completed the eighth grade, [4] did not attend special education classes, and did not complete any specialized job training, trade, or vocational school. Tr. 215. He listed his past relevant work (“PRW”) as welding, landscape laborer, and drop ceilings construction. Id. Plaintiff indicated he stopped working on March 15, 2012 because of his medical conditions that he described as seizures, heart condition, acid reflux, and vision problems. Tr. 214. Plaintiff indicated he was 5'4” tall and weighed 168 pounds. Id. In a Disability Report-Appeal dated April 16, 2015, Plaintiff indicated he was being treated for physical and mental conditions. Tr. 254. Plaintiff noted that he was constantly in pain and his “left foot is always hurting making it difficult to walk for long periods of time.” Tr. 259.

         C. Administrative Proceedings

         On February 7, 2017, Plaintiff appeared with counsel at an administrative hearing in Columbia, South Carolina and testified regarding his application for SSI. Tr. 705. VE William Stewart also appeared and testified at the hearing. Id.

         1. Plaintiff's Testimony

         In response to questions from the ALJ Plaintiff testified that he lived in Hamer, South Carolina with his mother. Tr 711. Plaintiff stated that he was 5'4” tall and weighed about 138 pounds, which was his normal weight. Tr. 711-12. Plaintiff testified that he was not working, and he last worked in 2011 for Florence Steel as a welder. Tr. 712. Plaintiff stated the last job he worked on was building a school in Texas and when he returned home he almost lost his life in a motorcycle accident. Id. Plaintiff testified that he “he stayed on a drunk for about a year, and [his] last drink was February 20, 2014.” Id.

         Plaintiff testified that a lot of his past work involved “building motorcycles, low-rider car carriers and asphalt trailers.” Tr. 714. Plaintiff stated: “Basically all I was doing my whole life was setting mobile homes and welding.” Tr. 715. Plaintiff also testified that he worked for Franko Manufacturing wrapping boxes of tiles. Id. Plaintiff stated he lifted the boxes which weighed from 40 up to 90 pounds. Tr. 716.

         The ALJ asked Plaintiff what was the biggest problem that kept him from working and Plaintiff responded that he “can't sit down because of [his] back.” Tr. 718. Plaintiff also testified that doctors had to “rebreak” his foot and put a pin it and because he is unable to fight off infections due to his psoriasis, his foot got infected. Doctors removed the pin and now his “foot hurts like crazy all the time.” Id. Plaintiff testified that a week after his foot surgery he had a hernia operation and now he needs another one. Id. Plaintiff testified that he was cut with a knife down his left side and has problems with his left arm and “with [his] whole body.” Tr. 719. Plaintiff described having pain in the middle of his chest that started four months prior. Id. Plaintiff said he found out that the pain was related to “something they put [him] back together with” after his motorcycle accident. Tr. 719-20. Plaintiff also stated his knees hurt but he does not know why. Tr. 720. Plaintiff testified he has been unable to see a doctor because he has no insurance. Id. When asked to describe the pain in his foot Plaintiff testified that it “actually hurts all the time but it mostly hurts when I try to walk on it.” Tr. 721. Plaintiff indicated that he was wearing a specially-made shoe that helped “a little bit.” Id. Plaintiff stated that the surgery made it worse. Id. The ALJ noted that Plaintiff had a cane and Plaintiff stated he needed it to keep the pressure off his foot and he had to start using it after his surgery. Id. Plaintiff stated that doctors had not gotten to treating his back yet. Id. Plaintiff stated that doctors repaired his hernia on the left side, then they repaired the right side, but they now need “to go back in and redo the left one.” Tr. 722-23.

         The ALJ asked about positive drug tests for amphetamines, oxycodone, and other opiates. Tr. 723. Plaintiff testified that his seizure medication shows up as opiates and that doctors prescribed all those drugs after his surgeries. Id. Plaintiff testified that his seizures are under control after having his medication increased. Tr. 724-25. Plaintiff testified that he can sit longer than he can stand, and he can stand for a few minutes in one spot before needing to sit down. Tr. 725. Plaintiff testified that walking is better, and he tries to walk as much as he can because it helps with his pain. Id. Plaintiff stated that he also tries to exercise by bending his knees. Tr. 726.

         Plaintiff testified that he finished the seventh grade but quit school in the eighth grade because he was “[y]oung, partying, drinking, [and] didn't care.” Tr. 726. Plaintiff stated that he was not in regular classes and people would pick on him and his brother because of their old clothes. Tr. 727. Plaintiff testified that his driver's license was taken away due to DUI's but in 2014 he was able to get it back but has to use a breathalyzer before he can start the car. Tr. 727-28. Plaintiff testified that when he first took the driver's test he took it on the computer. Tr. 728. Plaintiff stated that he is “a real slow reader” but he can write well enough to make a grocery list. Tr. 729. Plaintiff testified that during the day he helps his mother with yard work and watches a little television. Tr. 730. Plaintiff stated there was not much to do, but he helps his brother who has a youth ministry with fundraising activities. Tr. 731-32.

         The ALJ asked Plaintiff why he would be unable to do a job sitting at a table inspecting pens. Tr. 732. Plaintiff responded that he did not know if he ever had a job to inspect pens. Tr. 733.

         Plaintiff's counsel asked Plaintiff to put that example aside, and instead he asked Plaintiff to explain why he could not do a desk job answering phones. Tr. 733. Plaintiff stated that his back would prevent him from working and his “head was hit.” Id. With regard to his schooling Plaintiff testified that he did not go to school often because he could not read and write well, and people were picking on him and his brothers all the time. Tr. 734. Plaintiff stated he would have a hard time understanding newspaper articles and he was trying to read the Bible but was having a hard time understanding it. Tr. 735. Plaintiff stated that although he could write a grocery list he cannot spell. Plaintiff stated that his mother does the grocery shopping. Id. Plaintiff testified that he was able to drive and had driven himself to the hearing although someone accompanied him. Tr. 736. Plaintiff testified that he helps his mother around the house. Tr. 737. He stated he will “get the trash up” and “sweep the kitchen.” Id. Plaintiff stated that he will sweep half the kitchen, then sit and rest for a minute or two, and sweep the other half. Id. Plaintiff confirmed that his physical and mental conditions stem from his motorcycle accident. Id. Plaintiff confirmed that his positive drug screens where based on medications he was prescribed as a result of his surgery and he was not taking any illicit drugs. Tr. 737-38. When asked about his ability to concentrate and remember things Plaintiff testified that he has to write it down. Tr. 739.

         2. VE's Testimony

         The VE identified Plaintiff's PRW as a welder, Dictionary of Occupational Titles (“DOT”) number 819.384-010, medium exertional level, SVP:6, skilled. Tr. 741. The VE noted that some of Plaintiff's welder jobs involved lifting 100 pounds or more so they would have overlapped into the heavy exertional category. Id. The VE further identified Plaintiff's PRW as motorcycle sub-assembler, DOT number 806.684-094, heavy, SVP:5, beginning level of semi-skilled work; packager-hand, DOT number 920.587-018, medium, SVP:2, unskilled; and mobile home lot utility worker, DOT number 899.484-010, heavy, SVP:6, skilled. Tr. 741-42. After some discussion, the VE corrected his identification of Plaintiff's past job from motorcycle assembler to trailer assembler II, DOT number 806.684-082, medium, SVP:4, semi-skilled. 742-43. The ALJ posed the following hypothetical:

[A]ssume an individual who is 41 years old with a seventh grade education and relevant past work as same as the Claimant, who is limited to lifting 20 pounds occasionally, ten pounds frequently. The individual can sit, stand and walk six of eight hours each. The individual can frequently climb ramps or stairs, occasionally climb ladders, ropes or scaffolds, frequently balance, stoop, kneel, crouch and crawl. The individual should never be exposed to unprotected heights and moving machinery. And would be limited to simple routine and repetitive tasks not at a production rate pace. The individual would be limited to simple work decisions in environments where there were only occasional routine changes in the work setting and duties.

Tr. 743. The ALJ asked if that individual could perform any of Plaintiff's past work and the VE testified that “all of the past jobs would be ruled out.” Tr. 744. The VE testified that there would be light, unskilled jobs that would match the description and identified the following representative examples: assembler, DOT number 706.684-022, light, SVP:2, unskilled, nationally 100, 000 jobs which is a reduced number because of no production work; inspector and hand packager, DOT number 559.687-074, light, SVP:2, with reduced number of 90, 000 jobs; and cleaner, DOT number 323.687-014, light, SVP:2, nationally 150, 000 jobs. Tr. 744. The ALJ asked if the available work would change if he added the requirement that “the person must have reminders of work tasks an additional two times a day[.]” Id. The VE responded that “there probably would be some reduction in the numbers, but not the jobs that [he] gave.” Tr. 745. The VE opined the reduction would be “20 percent, 25 percent at the most” for the kinds of jobs he identified. Id. The ALJ asked if there would be jobs available if the individual described in either of the prior two hypotheticals “would be unable to sustain concentration for two hour blocks of time or would be off task for 20 percent of the workday in additional [sic] to regularly scheduled breaks” and the VE responded there would not be a job that would match that description. Id. The VE testified that his testimony was consistent with the DOT except the DOT does not address a worker being off task 20 percent of the workday. The VE stated his testimony was based on his “many years of clinical experience and to a degree [his] study and [his] training over the years.” Id. The VE also noted that the DOT does not include information related to task reminders, and his testimony was based on the same clinical experience, study, and training. Tr. 745-46.

         Plaintiff's counsel asked, with regard to the assembler, inspection, hand packer, and cleaner jobs whether the individual would still be required to keep up a certain pace and be able to meet certain requirements throughout the day to fulfill job expectations. Tr. 746. The VE responded that “would be absolutely correct.” Id. The VE agreed with the premise that an assembler would still need to sit and be responsible for a particular assembly portion throughout the day and maintain concentration throughout the majority of the day. Id. The VE testified that “[e]ven like in cleaning, you've still got to maintain an appropriate flow of work during the day. And that ties in with not being off task, as well.” Id.

         II. Discussion

         A. The ALJ's Findings

         In her March 28, 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 December 31, 2012, the application date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: left foot fractures post motor vehicle accident, aortic aneurysm repair, chronic 5th toe metatarsal dislocation, substance addiction disorder in remission by report, chronic pain disorder, major depressive disorder, anxiety ...

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