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Clancy v. Saul

United States District Court, D. South Carolina

September 12, 2019

Brian Clancy, Plaintiff,
v.
Andrew M. Saul, [1] Commissioner of Social Security Administration, Defendant.

          REPORT AND RECOMMENDATION

          Kaymani D. West 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 Civil Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of a final decision of the Commissioner of Social Security (“Commissioner”), denying his claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) pursuant to the Social Security Act (“the Act”). For the reasons that follow, the undersigned recommends that the Commissioner's decision be affirmed.

         I. Relevant Background

         A. Procedural History

         On November 18, 2014, Plaintiff applied for DIB and SSI pursuant to Titles II and XVI of the Act alleging he became disabled on April 15, 2007. Tr. 221-29. Plaintiff subsequently amended his applications to change his onset date to January 1, 2014. Tr. 230. His applications were denied initially, Tr. 86, 99; and upon reconsideration, Tr. 113, 129. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), Tr. 160, and on May 12, 2017 ALJ Colin Fritz held Plaintiff's administrative hearing, Tr. 32. Plaintiff appeared with counsel and testified, along with a Vocational Expert (“VE”). Id. The ALJ issued an unfavorable decision on August 28, 2017. Tr. 9-24. Plaintiff requested review of the decision from the Appeals Council, Tr. 216, which denied his request on June 8, 2018, Tr. 1-5. This denial made the ALJ's August 28, 2017 decision the Commissioner's final decision for purposes of judicial review. Tr. 1. Plaintiff brought this action seeking judicial review of the Commissioner's decision in a Complaint filed July 20, 2018. ECF No. 1.

         B. Plaintiff's Background

         Born in June 1964, Plaintiff was 49 years old on his alleged onset date of January 1, 2014. Tr. 261. In his December 31, 2014 Disability Report - Adult, Plaintiff indicated that he completed four or more years of college with a B.A. degree in 1987. Tr. 266. He also indicated that he received his SCC License from the Carolina School of Broadcasting in 1990. Id. Plaintiff listed his past relevant work (“PRW”) as school district teacher's assistant (2000), self-employed church janitor (2010), construction company general laborer (1999-2001), furniture warehouse delivery and sales (2004), and fast food cook (Nov. 2014 -). Tr. 267. Plaintiff indicated that he was currently working. Tr. 265. Plaintiff listed the following conditions that limit his ability to work: dysthymic disorder, varicose veins, high blood pressure, and obesity. Tr. 265. Plaintiff noted that he was 6'4” tall and weighed 370 pounds. Id. In a Disability Report - Appeal dated April 30, 2015, Plaintiff indicated a change in his medical condition that occurred in December 2014. Tr. 310. Plaintiff noted the following:

I have an increase in pain throughout my body especially my legs swelling and they will burst and bleed, I have to wear compression stockings and they are purple. I have difficulty walking or standing for prolonged periods. I am not able to bend stoop or squat, I have to have assistance putting on my shoes and sock[s]. I have an increase in symptoms related to my depression and anxiety, my brother recently passed away and I was living with him and I am not able to process things. I have anger outburst and when I am upset when others talk loud to him [sic] or things are out of place. I have difficulty focusing and with short term memory. I have to write down important dates and time in order to remember them, and I am very easily distracted.

Id. Plaintiff also indicated that he had difficulty performing activities of daily living (“ADLs”) due to his conditions. Tr. 313. Plaintiff filed another Disability Report - Appeal dated August 7, 2015 indicating changes in his medical conditions that occurred in April 2015. Tr. 341-42. Plaintiff again noted problems with severe swelling and pain in his legs. Plaintiff also indicated that because of his obesity he had “difficulty sitting for prolonged periods due to circulation being restricted. I also fall asleep after sitting for long periods, even while eating.” Tr. 342. Plaintiff noted increased fatigue and difficulty with mental comprehension. Id.

         C. The Administrative Proceedings

         Plaintiff's administrative hearing was held in Greenville, South Carolina before ALJ Colin Fritz on May 12, 2017. Tr. 32. Plaintiff appeared with counsel; VE Kathleen Robbins[2] also appeared and testified. Id.

         1. Plaintiff's Testimony

         In response to questions from the ALJ Plaintiff confirmed that he was currently 52 years old and that he had a college education with a degree in history. Tr. 36-37. Plaintiff testified that through 2003 he was working for the Cooke County (Georgia) Board of Education as a “paraprofessional and a teacher's assistant.” Tr. 37. Plaintiff also stated that through that position he also served as an assistant football coach for the Cooke County school systems. Id. Plaintiff stated that from 2004 into 2008 he worked for a furniture company called American Charms. Tr. 38. Plaintiff testified that he left his position with Cooke County schools “due to finances” and he was working on his teacher certification. Id. The VE indicated that there were records that Plaintiff did sales and furniture delivery. However, Plaintiff testified that he never did sales-he delivered furniture and worked at a warehouse. Tr. 39. The ALJ noted that Plaintiff worked for Summit Industries in 2009 and Plaintiff testified that was part-time work with varied hours. Tr. 41-42. The ALJ stated that job would not be considered as substantial gainful activity (“SGA”). Tr. 42. The ALJ noted that Plaintiff worked as a church sexton from 2010 to 2012 and Plaintiff responded that he “did maintenance work for a church.” Id. The ALJ noted that Plaintiff worked in 2013 and into 2014 for Bojangles. Tr. 43. Plaintiff stated that was a part-time position and his work hours never exceeded 32 hours. Tr. 43-44. The ALJ indicated that position would not be considered as SGA. Tr. 44. The ALJ stated that only the teacher assistant position and the furniture delivery position would be considered SGA and although the other positions came close, he would give claimant the benefit of the doubt. Id.

         Plaintiff testified that he had a driver's license, but he did not drive to the hearing but came with a family member. Tr. 44. The ALJ noted that Plaintiff was wearing compression stockings that came up to his knees. Tr. 44-45. Plaintiff stated that he sometimes wore one on his right leg that went up to his thigh, “depending on the swelling.” Tr. 45.

         In response to questions from his attorney Plaintiff testified that he was between 6'3” and 6'4” inches tall and weighed 366 pounds. Tr. 45. Plaintiff confirmed that his doctors had counseled him about losing weight and he had “some success with following their directions.” Tr. 46. Plaintiff testified that he had never been married and lived in a one-story home with his dog-a three-year-old fox terrier that weighed about 17 pounds. Id. Plaintiff stated that he did not have any children. Tr. 47. He testified that in the last 15 years he had not taken any classes or received any certifications. Id. Plaintiff testified that he does not have any income and a family member owns the house he lives in and pays the bills. Plaintiff stated that he receives food stamps but no other assistance from the state or federal government. Tr. 47-48. Plaintiff testified that his last job at Taco Bell “ended due to stress and an incident that occurred.” Tr. 48. Plaintiff stated that he was terminated for cause when he spoke to other employees in an unacceptable manner. Tr. 48-49. Plaintiff testified that he had been spoken to by management prior to the incident about time management and not completing tasks. Tr. 49-50. Plaintiff stated that at Taco Bell he was doing food prep and line service and very rarely talked to customers. Tr. 50. Plaintiff testified that when he was hired at Taco Bell his understanding was that he would be given an opportunity to train to become an assistant manager. Tr. 51. Plaintiff confirmed that he has memory problems that affect his ability to stay on task, to listen to directions instead of creating his own, or thinking he might be able to do something better than the way he was told to do it. Id. Plaintiff stated that it was “doubtful” that he was able to interact with his coworkers appropriately because he “never saw anybody comfortable around [his] way of working.” Tr. 52.

         Plaintiff testified that he did his own shopping and went to the store alone. Tr. 52. Plaintiff stated that because he did not have a working vehicle he had “occasional difficulties” with going shopping and he would walk “at least a half a mile or three-quarters of a mile” to the nearest store. Tr. 52-53. Plaintiff stated that his leg issues could make the walk difficult depending on the weather because the heat affected his leg conditions. Tr. 53. Plaintiff testified that walking home from the store with his purchases was more of a problem than walking to the store. Tr. 54. He stated that if he is in the store for more than an hour he would need to sit down before he started walking back home. Id. Plaintiff testified that he attends church alone and he either gets a ride or he walks the mile-and-a-half, depending on the weather, to the church. Id.

         Plaintiff stated that he believed he had an anxiety disorder. Tr. 54. Plaintiff stated that in the last four years he increasingly feels uncomfortable in new situations. Tr. 55. Plaintiff stated that he has family in the area-with the closest living two hours away-but he does not see his family very much. Id. He stated that his sister drove from Atlanta to attend the hearing with him. Id. Plaintiff stated that he talks on the telephone with various family members three-to-four times a week. Id. Plaintiff testified that in his opinion his mental health has been the reason for his weight gain. Tr. 56. Plaintiff stated that, according to a doctor, he has been significantly overweight for close to 25 years. Id. Plaintiff testified that he turns to food as an option for his feelings of loneliness, anxiety, and loss of temperament or focus. Id. Plaintiff testified that he takes medications for all of his symptoms. Id. He stated that his blood pressure medication keeps away headaches and the other medications “seem to have some success with keeping some adrenaline, but [he has] seen very little, if any, consistency.” Tr. 56-57. Plaintiff testified that the medications he takes for his mental health issues “could be going in the direction of helping” but the progress seemed slow. Tr. 57. Plaintiff testified that his inability to stay focused and on-task for a full day was what precluded him from being able to work full-time. Id.

         Plaintiff testified that during the day he starts the morning doing tasks inside or outside of the home, he does some form of exercise or he walks to the store or to church for church activities, and he watches television. Tr. 57-58. Plaintiff stated that, “through the generosity of a family member, ” he has been working out at the YMCA. Tr. 59. Plaintiff stated that he had to ride the bus to get there because it is too far to walk. Id. He stated that he desired to go four-to-five times a week, but he has “only been making it there one to two times due to whatever else responsibilities [he has] each week . . . whether it's a doctor's appointment or . . . church activities . . . or shopping.” Tr. 59-60. Plaintiff testified that the YMCA has a swimming pool and that is his “source of working out.” Tr. 60. Plaintiff stated that between 8:00 a.m. and 5:00 p.m. he watches, on average, one or two hours of television. Tr. 61. Plaintiff testified that he naps in the afternoon for 30 minutes to an hour while attempting to watch television. Id.

         The ALJ resumed questioning of Plaintiff and asked him about his sleep schedule. Tr. 62. Plaintiff stated that he has sleep apnea but has been provided with a sleep apnea machine. Id. Plaintiff described his ability to sleep as “fair to poor at best” although he uses the machine consistently. Id. The ALJ asked if Plaintiff had sought out any vocational rehabilitation services and Plaintiff responded that he had not but that he would be willing to pursue that. Tr. 63. Plaintiff remarked on a Christmas trip he made to California. He stated that the trip to visit his sister was “very good” and he flew out to California alone. Id. Plaintiff testified that he sees Dr. Winter every three months, and he sees Mr. Carbone about every 45 days for medication management. Tr. 64-65. Plaintiff stated that recently he has been attending a weekly group therapy session for coping skills related to depression and anxiety. Tr. 65-66. Plaintiff stated that he is provided transportation to therapy and doctors' appointments through Spartanburg Access Health and St. Luke's, but they will not transport him to the YMCA. Tr. 66.

         Plaintiff's counsel asked Plaintiff whether he had taken any trips outside of the United States since January of 2014. Tr. 67. Plaintiff testified that in the summer of 2014 he traveled with his family to Ireland for a week where about 35 family members stayed at a castle. Id. Plaintiff stated that when he was unable to do certain activities with the entire family, he and his brother would do whatever activities the two of them could do. Tr. 68. Plaintiff stated that on his California trip he stayed at a lodge for four nights. Plaintiff testified that he was alone “a fair amount of the trip” and it was in a nice area near the water and there were sites where he was alone. Id.

         2. VE's Testimony

         VE Robbins also testified at the hearing. The VE characterized Plaintiff's PRW as: furniture mover, very heavy, semi-skilled, specific vocational preparation (“SVP”) of 3, performed at SVP of 2, Dictionary of Occupational Titles (“DOT”) 904.687-010; and teacher's assistant, light, skilled, SVP of 6, DOT 099.327-010. Tr. 70-71. The ALJ asked the VE to assume an individual approaching advanced age with a high school or more education, and Plaintiff's PRW in the following hypothetical:

Hypothetical number one, over the course of an eight-hour workday in two-hour increments with normal and acceptable work breaks, this person can perform work at the light exertional level as defined in the rules and regulations; this person could never climb ladders, ropes, and scaffolds; this person could occasionally climb ramps and stairs, crouch and crawl; this person can frequently balance, stoop, and kneel; this person can occasionally be exposed to extreme heat and hazards associated with unprotected dangerous machinery and unprotected heights; this person can concentrate, persist, and maintain pace efficient 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 team-dependent production requirements involving simple work-related decisions; occasional independent judgment skills and occasional workplace changes.
This person can perform jobs with only superficial interaction with the general public; they can perform jobs where the work duties can be completed independently from coworkers. However, physical isolation is not required; and finally this person could respond appropriately to reasonable and customary supervision.

Tr. 73-74. The ALJ asked if this hypothetical individual could perform any of the identified PRW, and the VE responded in the negative but identified other work the individual could perform that included: unskilled cashier, light, unskilled, SVP of 2, DOT code 211.462-010, nationally approximately 740, 800 full-time jobs; building cleaner, light, unskilled, SVP of 2, DOT code 323.687-014, nationally approximately 135, 000 full-time jobs; and marker in retail, light, unskilled, SVP of 2, DOT code 209-587-034, nationally approximately 283, 900 jobs. Tr. 74-75.

         For his second hypothetical the VE modified the first hypothetical to “maintain the light exertional level except that we're going to limit standing and walking combined for four hours out of an eight-hour workday; sitting could still be performed for six hours out of an eight-hour workday; plus the same remaining postural[, ] environmental, mental, and social limitations from hypothetical number one.” Tr. 75. The ALJ asked if any work could be performed under hypothetical number two and the VE identified the positions of unskilled cashier as previously identified but the number reduced to approximately 82, 300 full-time jobs to account for access to a stool; routing clerk, light, unskilled, SVP of 2, DOT 222.587-038, nationally approximately 52, 200 full-time jobs; and ticket taker, light, unskilled, SVP of 2, DOT code 344.667-010, nationally approximately 7, 200 full-time jobs. Tr. 75-76.

         For his third hypothetical the ALJ added two limitations related to time off task and absenteeism. Tr. 76. The ALJ noted that “concentration, persistence, and pace can be maintained for 25 percent of the workday . . . . mental or physical, but the end result would be that they would be off task an average of 25 percent of the workday beyond normal work breaks.” Id. The ALJ also noted the “person would also be absent from work an average of three or more days per month.” Tr. 76-77. The VE stated that with those limitations added to either hypothetical there would not be any work that could be performed. Tr. 77. The VE confirmed that the limitations regarding reduced standing, time off task, and absenteeism are not directly addressed in the DOT or its companion publications but were based on the VE's “knowledge, training, and experience on how work is performed.” Id. The VE noted her testimony was “also based upon research that's been done in our field and rehabilitation counseling of how work is performed.” Id.

         Plaintiff's counsel questioned the VE about an individual of the same characteristics as Plaintiff who 50 percent of the time performed tasks differently than instructed which resulted in performance issues. Tr. 80-81. The VE responded that the hypothetical individual “would not maintain their employment if that was the case.” Tr. 81. Counsel asked if full-time employment would be limited or precluded if the hypothetical individual “90 percent of the time was unable to appropriately deal with coworkers and be around coworkers and 25 percent of the time was unable to appropriately respond to managers' and supervisors' directions” and the VE responded affirmatively. Id. Plaintiff's counsel asked the VE when was the last time she saw the unskilled cashier position being performed with access to a stool. The VE responded that she saw it the previous day when she was exiting a parking garage. Id. The VE also testified that she had worked as an unskilled cashier. Tr. 82. The VE noted that she had never, in her experience as a VE, observed the job for eight hours but as an expert she relied on research done by other individuals in the field. Id. Plaintiff's counsel also questioned the VE regarding her observation of the marker/routing clerk position ...


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