United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge.
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.
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.
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
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.
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 also appeared and
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.
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.
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.
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.
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.
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.
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.
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.
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 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.
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.
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.
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 ...