United States District Court, D. South Carolina
Clinton D. Proctor, Plaintiff,
Andrew M. Saul, Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
V. Hodges 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 Civ. Rule
73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action
pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to
obtain judicial review of the final decision of the
Commissioner of Social Security (“Commissioner”)
denying his claim for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”). The two issues before the court are
whether the Commissioner's findings of fact are supported
by substantial evidence and whether he applied the proper
legal standards. For the reasons that follow, the undersigned
recommends the Commissioner's decision be reversed and
remanded for further proceedings as set forth herein.
1, 2014, Plaintiff filed applications for DIB and SSI in
which he alleged his disability began on April 1, 2009. Tr.
at 21. His applications were denied initially and upon
reconsideration. Tr. at 151, 162. Prior to the hearing,
Plaintiff filed a brief amending his alleged onset date to
February 24, 2012. Tr. at 367. On September 14, 2017,
Plaintiff had a hearing before Administrative Law Judge
(“ALJ”) Linda Diane Taylor. Tr. at 37-71
(Hr'g Tr.). The ALJ issued an unfavorable decision on
November 28, 2017, finding Plaintiff was not disabled within
the meaning of the Act. Tr. at 18-36. Subsequently, the
Appeals Council denied Plaintiff's request for review,
making the ALJ's decision the final decision of the
Commissioner for purposes of judicial review. Tr. at 1-4.
Plaintiff filed a claim for SSI on February 26, 2018,
alleging the same medical conditions at issue here, which
claim was approved on June 19, 2018, with an effective onset
date of February 2018. Thereafter, Plaintiff brought this
action seeking judicial review of the Commissioner's
decision in a complaint filed on May 15, 2018. [ECF No. 1].
Plaintiff's Background and Medical History
was 52 years old at the time of the hearing. Tr. at 42-43. He
obtained a high school equivalency certificate. Tr. at 444.
His past relevant work (“PRW”) was as a plumber.
Tr. at 43. He alleges he was unable to work from February 24,
2012, to February 2018 and remains disabled. [ECF No. 28 at
March 15, 2012, Plaintiff presented to Mark J. Hoy, M.D.
(“Dr. Hoy”), for evaluation of hearing
deficiency. Tr. at 380. Dr. Hoy reviewed audiometric studies
that demonstrated essentially flat moderately-severe to
severe hearing loss, slightly worse in the right ear. Tr. at
381. Dr. Hoy observed Plaintiff to demonstrate normal
vocalization and found no abnormalities on physical exam.
Id. He diagnosed bilateral sensorineural hearing
loss, recommended fitting for a hearing aid, and advised
Plaintiff to protect his ears from further noise exposure.
Tr. at 381-82.
January 9, 2015, Plaintiff presented to John V. Custer, M.D.
(“Dr. Custer”), for a consultative mental status
examination. Tr. at 443. He reported a history of nervous
tics that initially presented following his father's
unexpected death. Id. He complained of problems with
anger and depression and endorsed a history of conflicts
associated with impaired hearing and communication.
Id. He reported depression, sleep disturbance, and
occasional suicidal thoughts. Tr. at 444. He stated he
sometimes performed odd jobs for neighbors and was able to
maintain concentration for three-to-four hours to complete
the jobs. Id. Dr. Custer observed Plaintiff's
grooming to be within normal limits. Id. He noted
normal posture and gait, no involuntary movements, and normal
and appropriate affect. Id. He stated Plaintiff was
able to understand and provide goal-directed responses to
questions, but needed to lean forward to listen. Id.
He observed no evidence of loose associations, flight of
ideas, or bizarre content. Id. He performed a
cognitive exam and noted Plaintiff was alert and fully
oriented, able to name the current president and past
presidents back to Clinton, could spell “world”
forward and backward, followed a three-step command, copied a
geometric design, and scored 29 of 30 on the Mini-Mental
State Exam. Tr. at 445. He diagnosed mood disorder, not
otherwise specified and stated he could not rule out alcohol
use disorder. Id. Dr. Custer noted Plaintiff had
reported relatively mild mood symptoms that appeared to be
related to his frustration with hearing loss. Id. He
stated Plaintiff's mood symptoms would likely improve if
his hearing impairment were addressed. Id.
presented to Julie Shoemaker, Au. D. (“Dr.
Shoemaker”), for a hearing evaluation on February 3,
2015. Tr. at 372. He reported a history of congenital hearing
loss, but indicated he had not worn hearing aids in 10 years.
Id. He stated he had difficulty getting along with
others in the workplace because he was unable to hear them.
Id. Audiometry revealed a severe to profound
sensorineural hearing loss in the left ear of 78.8% and a
profound sensorineural hearing loss in the right ear of
97.5%. Id. Plaintiff had a binaural hearing
impairment of 81.9%. Id. He could discern 40% of
words in the right ear and 76% of words in the left ear at a
volume of 100 decibels (“dB”). Id. Dr.
Shoemaker diagnosed bilateral sensorineural hearing loss and
tinnitus and indicated Plaintiff needed hearing aids.
also presented to otolaryngologist Russell Kitch, M.D.
(“Dr. Kitch”), for a consultative examination on
February 3, 2015. Tr. at 376-78. He indicated he had
marginally tolerated hearing aids in the past and relied
primarily on lip reading. Tr. at 376. He reported a history
of difficulty with social interaction, anger management, and
maintaining jobs as a result of his hearing loss.
Id. Dr. Kitch observed Plaintiff to speak at a
markedly loud volume and to have severe to profound
sensorineural hearing loss in the left ear and profound
sensorineural hearing loss in the right ear. Tr. at 377. He
stated the “[s]everity of hearing loss, presents a
significant workplace disability for [Plaintiff]” and
impaired speech discrimination, lifestyle, and power tools in
workplace would “limit the efficacy of conventional
hearing aids.” Id. He recommended Plaintiff
increase use of conventional hearing aids, but noted they
“may be unable to allow effective employment
opportunities in his line of work.” Id. He
diagnosed bilateral sensorineural hearing loss and tinnitus.
February 12, 2015, state agency medical consultant A.
Hammond, M.D. (“Dr. Hammond”), reviewed the
record and completed a physical residual functional capacity
(“RFC”) assessment. Tr. at 91-93. Dr. Hammond
assessed no exertional, postural, manipulative, or visual
limitations. Tr. at 91-92. He found Plaintiff had
communicative limitations as a result of bilateral hearing
loss. Tr. at 92. He indicated Plaintiff had no serviceable
hearing in his right ear and average hearing in his left ear
at 78 dB. Id. He stated Plaintiff “should be
able to hear and understand instructions given face-to-face
towards his left ear, in a loud voice and quiet environment,
” but “[a]ny employment requiring normal hearing
[should] be avoided.” Id. He indicated
Plaintiff should avoid even moderate exposure to noise and
all workplaces with auditory safety signals. Id. A
second state agency consultant, E. Layne, M.D. (“Dr.
Layne”), assessed the same physical RFC on December 8,
2015. Tr. at 118-19.
February 24, 2015, state agency consultant M. Koretzky Ph.D.
(“Dr. Koretzky”), reviewed the record and
completed a psychiatric review technique (“PRT”)
form. Tr. at 90-91. He considered Listing 12.04 for affective
disorders and assessed mild difficulties in maintaining
social functioning. Tr. at 90. He assessed no restriction of
activities of daily living (“ADLs”), no episodes
of decompensation, and no difficulties in maintaining
concentration, persistence, or pace. Id.
presented to Berkeley County Mental Health Center
(“BCMHC”) for an initial clinical assessment on
April 30, 2015. Tr. at 395. He complained of increased
irritability, mood swings, isolative behavior, and sleeping
two-to-three hours per night. Id. He reported a
history of suicidal ideation and anger associated with
difficulty communicating. Id. He endorsed frequent
use of alcohol and cannabis. Tr. at 396. Plaintiff reported
episodes of anger and yelling as a result of fear that others
were talking about him. Tr. at 399. Patricia A. Young, M. Ed.
(“Ms. Young”), noted the following on mental
status examination: neat and clean appearance and hygiene;
poor coordination secondary to “bad knee”;
irritable attitude; blunted and flat affect; anxious, angry,
and depressed mood; loud and pressured speech secondary to
hearing impairment; blocking, racing, indecisive, and
disorganized thought process; thought content characterized
by ideas of hopelessness, worthless, and paranoia; alert to
person, place, time, and situation; fair insight and
judgment; poor recent memory; impaired insight; able to
perform simple math; easily distracted; and below average
fund of knowledge. Tr. at 397-99. Ms. Young assessed a global
assessment of functioning (“GAF”) score of
and provided diagnostic impressions of severe major
depressive disorder (“MDD”) with psychotic
features, post-traumatic stress disorder
(“PTSD”), and polysubstance dependence. Tr. at
398. She stated Plaintiff's hearing impediment was
“definitely a problem” and “much effort
[was] exerted to communicate with him.” Tr. at 399. She
recommended regular mental health assessments and individual
therapy to improve coping skills for stress management and
decrease racing thoughts, tactile hallucinations, isolation,
and other symptoms. Id.
presented to psychiatrist Margaret Rittenbury, M.D.
(“Dr. Rittenbury”), for an initial psychiatric
medical assessment on August 13, 2015. Tr. at 406-07. Dr.
Rittenbury observed Plaintiff to “talk VERY
LOUD.” Tr. at 406. Plaintiff reported a history of
impaired relationships as a result of his hearing impairment
and indicated he was quick to anger. Id. He denied
spontaneous crying spells. Id. He admitted to
alcohol and drug use. Id. He endorsed a history of
suicidal ideation, but denied plans and attempts.
Id. Dr. Rittenbury diagnosed moderate, recurrent
MDD, cannabis abuse, and alcohol abuse and assessed a GAF
score of 60. Tr. at 407. She noted Plaintiff had
impaired socialization skills characterized by “loud
and gruff” voice and being quickly frustrated.
Id. She referred Plaintiff for lab work and advised
him to take vitamins and ibuprofen and to follow up in one
month. Id. She referred Plaintiff to a care
coordinator for hearing aids. Id.
December 3, 2015, state agency consultant Douglas Robbins,
Ph.D. (“Dr. Robbins”), reviewed the record and
complete a PRT form. Tr. at 115-17. He considered Listings
12.04 and 12.09 for substance addiction disorders. Tr. at
116. He assessed no episodes of decompensation, mild
restriction of ADLs, moderate difficulties in maintaining
social functioning, and mild difficulties in maintaining
concentration, persistence, or pace. Id.
March 24, 2016, Plaintiff reported he was upset because his
family was contemplating whether to put his mother in a
nursing home. Tr. at 418. He complained of irritability,
sleep disturbance, and withdrawal. Id. He reported
his friend pulled a knife on him during a recent altercation.
Id. Dr. Rittenbury noted normal findings during
mental status exam, aside from loud speech, depressed mood,
and fair insight and judgment. Id. She prescribed
Zoloft and instructed Plaintiff to follow up for medication
monitoring in one month. Tr. at 419. She also recommended
Plaintiff attend psychotherapy with a clinician and obtain a
physical examination from a medical clinic. Id.
9, 2016, Plaintiff indicated he was taking Zoloft, but
occasionally missed a dose. Tr. at 420. He reported improved
sleep, appetite, and concentration, and his sister stated he
had been much calmer since starting the medication.
Id. He stated he had last used cannabis on March 9,
2016, but continued to use alcohol “socially.”
Id. He indicated he had been attacked by a woman and
her dog on the prior day and had put his hand on the
woman's neck to get her off him. Id. Dr.
Rittenbury noted fair judgment and loud speech, but indicated
no other abnormalities on mental status exam. Tr. at 421. She
declined to increase Zoloft and stated Plaintiff's action
on the prior day was a reflex of being attacked. Id.
November 4, 2016, Plaintiff was discharged from services at
BCMHC for lack of attendance. Tr. at 432.
followed up with Dr. Hoy on August 30, 2017. Tr. at 437. He
reported worsened hearing loss following a blow to the head
one month prior. Id. An audiology exam showed
plaintiff to have a speech awareness threshold
(“SAT”) of 95 dB. Tr. at 435. Dr. Hoy assessed
bilateral severe sensorineural hearing loss with conductive
hearing loss contribution on the right side and small right
tympanic membrane perforation. Tr. at 439. He stated that
given the small size of the tympanic membrane perforation and
the recent trauma, the ear drum was likely to heal without
surgery. Id. He recommended Plaintiff follow up for
reevaluation in four weeks, consult an audiologist for
hearing aid evaluation, and consider cochlear implants.
hearing on September 14, 2017, Plaintiff testified he let his
license expire in July 2017 because he lacked money for a
car. Tr. at 42-43. He said he stayed with and took care of
his mother until she died in September 2016 and had lived
alone since. Tr. at 43. He testified he started as a plumber
when he was 19 years old and stopped working ten years prior,
as he did not get along well with coworkers and gave it up.
Tr. at 43-44. He testified he felt he was taken advantage of
by his coworkers who used his problem against him moneywise.
Tr. at 44. Plaintiff stated he had sleep problems, was
depressed, did not get along with people, and was happier
staying home. Id. He said he did not get along with
people because they do not like to repeat themselves.
Id. He said he did a lot of hard jobs that were
physically difficult and ailed him, including his back,
knees, and “from the top down.” Tr. at 44-45. He
said he was not physically able to work. Tr. at 45. He stated
he used to wear a hearing aid, but it did not help and
sometimes got in the way, including a time when one jammed
and was crushed in his ear, leaving pieces therein.
Id. He said hearing aids were only useful at home,
but he last used them 15 years prior and no longer had
functional ones. Tr. at 46.
stated he had depression and was prescribed Zoloft for
difficulty sleeping, but that he no longer took medication.
Tr. at 47. He indicated he had received mental health therapy
all his life, noting he had problems since he was 12 and had
a nervous tic, which sometime returned. Tr. at 47-48. He
stated he has withdrawn from society and would rather just
stay home, that he was dependent on his sisters, but did not
want to be dependent on them and needed help. Tr. at 47-49.
He said his sisters would check on him, make sure he had food
and would grocery shop for him. Tr. at 49. He noted having
been fired from jobs two or three times because of his
hearing problems. Id. He opined he could handle
money, pay for things, and got along with older people who
have known him all his life. Id. He stated that if
he could afford it, he desired help with his hearing.
Testimony of Teresa Gaskins
sister, Teresa Lynn Gaskins (“Ms. Gaskins”),
testified on his behalf. Tr. at 50-66. She indicated
Plaintiff's last employer “put up with him as long
as they could, ” but had indicated Plaintiff was
“just a liability” to the business and its
employees. Tr. at 51. She said Plaintiff's hearing had
worsened to the point that the police had stopped by his
house and asked him to turn the TV down. Id. She
said his mental status was increasingly angry, and that in
trying to care for their late mother, he would call his
sister for everything and was overwhelmed. Tr. at 50-51. She
stated their mother had fallen and could not get back up, and
Plaintiff's whole personality had changed, and he
referred to himself as “Holmes.” Tr. at 51-52.
She said Plaintiff had been traumatized in his life and his
condition had worsened, he walked funny, and he was
“just a recluse now, ” trusting only his two
sisters. Tr. at 52. She said some elderly neighbors would try
to give Plaintiff odd jobs, but that he could not finish them
and would become frustrated. Tr. at 52-53. She described that
when in public, he would say he “gets nervous in his
head” and his ears would ring all the time and he
believed people were looking at him, such that they could not
take him anywhere. Tr. at 53. She said Plaintiff did not have
any friends and she did not take him to the grocery store,
but that sometimes he would go to the store with their
sister, Leslie. Tr. at 53-54. She said that Plaintiff would
not know what he wanted in the grocery store, so she and
Leslie would buy what they thought Plaintiff would have. Tr.
at 53-54. She testified Leslie would take Plaintiff to his
mental health appointments, driving from Summerville to
Hanahan to Moncks Corner, but she stopped taking him after
becoming frustrated because the medication made him a
“pure zombie.” Tr. at 54. Ms. Gaskins expressed
frustration at not knowing what else to do for Plaintiff and
not knowing the extent of the mental health therapy he has
received, if any, noting he saw a different counselor each
time. Id. She confirmed Plaintiff formerly had
hearing aids, but feared them because they broke in his ears
and did not seem to help anyway. Tr. at 55-56, 61. She also
indicated Plaintiff was told at one time about a cochlear
implant possibly helping, but without a guarantee. Tr. at
Gaskins described Plaintiff as spending his day mostly
sleeping and banging on a piano to relieve his stress. Tr. at
57. She said he was able to take a shower, but sometimes
would go days without. She stated she would make him shave.
Id. She indicated Plaintiff lost interest in any
hobbies years ago. Id. She described hearing from
Plaintiff's last employer that employees were quitting
and not being able to work with Plaintiff due to his attitude
and temper, which together with his hearing impairment,
resulted in failures to communicate that would turn into
confrontations. Tr. at 58.
response to questioning by Plaintiff's counsel, Ms.
Gaskins testified that Plaintiff attended vocational rehab,
which tried to obtain hearing aids for him in 2012, but he
never received them. Tr. at 58-59. She recounted her and her
sister's frustration with the free clinic not keeping
Plaintiff's appointments and being given the runaround in
trying to obtain necessary dental work. Tr. at 59. She
described Plaintiff as having a short attention span and
embarrassing others in public because he would get mad in
situations like having to stand in line. Tr. at 60. She noted
Plaintiff feels inferior to others and has particularly
struggled with coordination in the past three years, breaking
things all the time. Tr. at 60-61. Ms. Gaskins testified
Plaintiff is not able to handle his own finances and that she
and her sister do it all for him and had recently obtained
food stamps for him. Tr. at 61, 63. She indicated hearing
aids had helped Plaintiff when he was younger, but stopped
working in his late 20s. Tr. at 61-62. She noted his hearing
had progressively declined, along with his mental health. Tr.
at 62. She testified that medications helped in that they did
not make him act crazy, but they just made him “be a
zombie all day, ” and he did not like the way he felt
on them. Id. Ms. Gaskins said Leslie interacted more
with Plaintiff than she did, but that Ms. Gaskins had more
responsibility for him financially. Tr. at 63. She said
Plaintiff stopped driving two years prior, after his license
expired and he did not have a car. Tr. at 64. She said she
did not think Plaintiff could drive and that she would not
get him a car. Id. She said that when he worked,
Plaintiff would walk to work or be picked up. Tr. at 65. She
said that if Plaintiff were able to have insurance, it would
allow them to obtain more intense treatment and help.
Vocational Expert Testimony
Expert (“VE”) Thomas Neil, Ph.D., reviewed the
record and testified at the hearing. Tr. at 66-70. The VE
categorized Plaintiff's PRW as a plumber as heavy,
skilled, SVP of 7, Dictionary of Occupational Titles
(“DOT”) No. 862.381-036. Tr. at 67. The ALJ
described a hypothetical individual of Plaintiff's
vocational profile who could perform the full range of medium
exertion, but who needed to avoid concentrated exposure to
noise above level 3; avoid concentrated exposure to hazards
and vibration; able to perform jobs that do not require
ongoing conversation with others; able to perform and sustain
simple, routine, repetitive tasks; and have only occasional
interaction with coworkers and the general public. Tr. at
67-68. The VE testified the hypothetical individual could not
perform Plaintiff's PRW. Tr. at 68. The ALJ asked whether
there were any other jobs in the regional or national economy
the hypothetical person could perform. Id. The VE
identified the representative positions of (1) machine
cleaner, DOT No. 699.687-014, medium, unskilled, SVP
of 2; (2) industrial cleaner, DOT No. 381.687-018,
medium, unskilled, SVP of 2; and (3) laundry worker II,
DOT No. 361.685-018, medium, unskilled, SVP
of 2; with 15, 000, 80, 000, and 110, 000 jobs available
nationally, respectively. Tr. at 68-69.
described a second hypothetical that modified the first
hypothetical to limit to the light exertional level, and the
VE testified the hypothetical individual could not perform
Plaintiff's PRW. Tr. at 69. The ALJ asked whether there
were any other jobs in the regional or national economy the
hypothetical person could perform. Id. The VE
identified the representative positions of (1) garment
bagger, DOT No. 920.687-018, light, skilled, SVP of
1; (2) hand presser, DOT No. 363.684-018, light,
unskilled, SVP of 2; and (3) cleaner housekeeping, DOT
No. 323.687-014, light, unskilled, SVP of 2; with 27,
000, 12, 000, and 240, 000 jobs available nationally,
described a third hypothetical that modified the second
hypothetical to limit to no interaction with coworkers and
the general public, and the VE testified there would be no
work available. Tr. at 69-70.
response to questioning by Plaintiff's counsel, the VE
testified if the noise level in the first and second
hypotheticals were reduced to no exposure above a level 1,
there would be no work available. Tr. At 70.
decision, the ALJ made the following findings of fact and
conclusions of law:
1. The claimant last met the insured status requirements of
the Social Security Act on ...