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Proctor v. Saul

United States District Court, D. South Carolina

October 2, 2019

Clinton D. Proctor, Plaintiff,
v.
Andrew M. Saul, [1]Commissioner of Social Security Administration, Defendant.

          REPORT AND RECOMMENDATION

          Shiva V. Hodges 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 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.

         I. Relevant Background

         A. Procedural History

         On May 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.[2] 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].

         B. Plaintiff's Background and Medical History

         1. Background

         Plaintiff 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 2].

         2. Medical History

         On 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.

         On 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.

         Plaintiff 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. Id.

         Plaintiff 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. Id.

         On 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.

         On 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.

         Plaintiff 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”)[3] score of 50[4] 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.

         Plaintiff 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.[5] 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.

         On 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.

         On 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.

         On June 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.

         On November 4, 2016, Plaintiff was discharged from services at BCMHC for lack of attendance. Tr. at 432.

         Plaintiff 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”)[6] 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. Id.

         C. The Administrative Proceedings

         1. The Administrative Hearing

         a. Plaintiff's Testimony

         At the 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.

         Plaintiff 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. Id.

         b. Testimony of Teresa Gaskins

         Plaintiff's 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 56-57.

         Ms. 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.

         In 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. Id.

         c. Vocational Expert Testimony

         Vocational 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.

         The ALJ 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, respectively. Id.

         The ALJ 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.

         In 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.

         2. The ALJ's Findings

         In her 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 ...

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