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.
December 31, 2012,  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.
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. 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.
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.
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.
form Disability Report-Adult dated June 26, 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.
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.
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.
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.”
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.
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.
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.
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.
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.
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.
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
[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.
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.
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 ...