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Jackson v. Saul

United States District Court, D. South Carolina

January 8, 2020

Robert Keith Jackson, Plaintiff,
v.
Andrew M. Saul, Commissioner of Social Security, Defendant.

          ORDER

          Kaymani D. West United States Magistrate Judge.

         This 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 Disability Insurance Benefits (“DIB”) 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.

         I. Relevant Background

         A. Procedural History On January 26, 2015, [1]

         Plaintiff filed an application for DIB alleging a disability onset date of August 26, 2014. Tr. 163-66. His claim was denied initially, Tr. 88, and upon reconsideration, Tr. 101, and Plaintiff requested a hearing, Tr. 120. On September 29, 2017, a hearing was held before an Administrative Law Judge (“ALJ”) and testimony was taken from Plaintiff who was represented by counsel. Tr. 56-77. On December 27, 2017, the ALJ issued an unfavorable decision finding Plaintiff was not disabled. Tr. 32-49. Plaintiff requested review of the decision from the Appeals Council, Tr. 160-61, and the Appeals Council denied review on November 21, 2018, making the ALJ's decision the Commissioner's final decision for purposes of judicial review, Tr. 1-5. Plaintiff brought this action seeking judicial review of the Commissioner's decision in a Complaint filed January 18, 2019. ECF No. 1.

         B. Plaintiff's Background

         Born in March 1971, Plaintiff was 43 years old on his alleged onset date of August 26, 2014. Tr. 219. In his January 31, 2015 Disability Report-Adult Plaintiff noted that he completed the 12th grade and had not completed any type of specialized job training or vocational school. Tr. 177. He listed his past relevant work (“PRW”) as: tire company repairman (1995-2007) and S.C. Department of Transportation (“DOT”) trade specialist (5/17/2007 - 8/26/2014). Id. Plaintiff indicated that he stopped working on August 26, 2014, because of his medical conditions, which he listed as: back injury, pinched nerve in back, depression, severe anxiety, high blood pressure, allergies, leg pain, and acid reflux. Tr. 176. Plaintiff indicated that he was 5'7” tall and weighed 210 pounds. Id.

         In a June 19, 2015 Disability Report-Appeal, Plaintiff indicated a change in his medical condition of pain radiating down both legs with worse pain in his right leg. Tr. 212. In a subsequent Disability Report-Appeal dated October 15, 2015, Plaintiff indicated a change in his medical condition that occurred in September 2015. Tr. 224. Plaintiff noted: “My depression has gotten worse and I am continuing to still be in pain. The pain radiates down both of my legs with my right leg being the worse.” Tr. 224.

         C. Administrative Proceedings

         Plaintiff appeared with counsel for his administrative hearing on September 29, 2017. Tr. 56. In response to questions from the ALJ Plaintiff confirmed he was 46 years old, a high school graduate, lived alone, was not working, and received income and medical care through Workers' Compensation benefits. Tr. 58-59. The ALJ confirmed Plaintiff's onset date of August 26, 2014, and that Plaintiff has not worked since that date. Tr. 59. Plaintiff testified that his last job was as a trade specialist with the South Carolina DOT in Chesterfield County. Tr. 60. Plaintiff stated that his duties were to “[d]ock trucks, run some equipment and we used hand tools like shovels, rakes and dug ditches and cut trees.” Id. Plaintiff confirmed the work was very heavy. Id. Plaintiff testified that in August 2014 he went into the cool room at work where the ice for coolers is kept, slipped on ice on the floor, fell and hurt his back. Id. Plaintiff stated that he has not attempted to return to work after that injury and, other than Workers' Compensation, did not draw any other unemployment insurance. Id.

         In response to questions from his attorney Plaintiff testified that he drew out his sick leave and vacation pay in 2015 but did not work in 2015. Tr. 61. Plaintiff testified that he still drives a car, but he cannot drive long distances and is unable to twist and turn because his back hurts too much. Id. Plaintiff stated that he has two herniated discs in his mid-back, and he has a pinched nerve in his lower back that causes pain that runs down his leg. Id. Plaintiff stated that it took one hour and 20 minutes to drive to the hearing from where he lived, but someone else drove him and he was able to ride without stopping. Tr. 61-62.

         Plaintiff testified that before working for the DOT he worked for 15 years for Gerard Tire until the company closed in 2007. Tr. 62. Plaintiff stated that he was a repair specialist at Gerard Tire and “handled big tires a lot and lifted rubber and recapped tires.” Id. Plaintiff testified that after his injury at the DOT he spoke with his family doctor, Dr. Novinger, about going back to work and the doctor “didn't see that [he] could.” Tr. 62-63. Plaintiff confirmed that he had a spinal cord stimulator implanted in January 2017 that helped his lower back pain, but it did not get rid of the pain completely. Tr. 63. Plaintiff testified that he still has pain in his mid and lower back that hurts every day. Id. Plaintiff testified that his shoulders and knees also hurt, and his “right leg gives more trouble than the other” and his “left shoulder hurts more than the right one, but they all hurt.” Id. Plaintiff described the pain in his back as a constant “aggravating pain” and at times he has a sharp pain in his right leg. Tr. 63-64. Plaintiff stated the pain in his shoulders and knees was related to his arthritis and was a “grinding” pain. Tr. 64. Plaintiff testified that the pain in his right leg was because he fell in March 2017 while walking and his leg collapsed. Plaintiff stated that he broke his leg and had to have a titanium rod put in his leg. Id. Plaintiff testified that he still limps, has trouble going up and down steps and “just walking, ” and still has pain in the area of the actual break. Tr. 65. Plaintiff stated that the pain in his back and knees is worse if he sits or stands too long, or with colder or rainy weather. Id. Plaintiff testified that he “can walk some, but it hurts [his] lower back a lot.” Id. Plaintiff testified that he could walk for 15 minutes but after 15 minutes he would have to sit down. Id. Plaintiff stated he could probably stand in one place for 30 minutes. Id. Plaintiff testified that he could sit in a straight chair for 30 minutes and noted that in the ride to the hearing he had to recline his seat. Tr. 66. Plaintiff testified that he did his own grocery shopping and carried the groceries in the house “a bag at a time.” Id. Plaintiff indicated he was able to carry a gallon of milk. Id.

         Plaintiff confirmed that he was still taking hydrocodone every six hours, taking gabapentin three times a day for nerve pain, and taking tizanidine three times a day for muscle spasms. Tr. 66-67. Plaintiff testified that the medication causes drowsiness and sometimes he will “actually take a nap from it.” Tr. 67. Plaintiff stated that two or three days a week he will take a nap that lasts a couple of hours. Id. Plaintiff testified that he had tried using ice and heat, but it did not help with his pain. Id. Plaintiff testified that he had been able to use the spinal cord stimulator again only recently after his broken leg because he thought “it did something to the nerves in [his] leg” that would cause it to hurt more than it normally did. Tr. 67-68. Plaintiff confirmed that he was taking Xanax and that he was still having problems with anxiety. Tr. 68. Plaintiff also confirmed that he was taking buspirone and duloxetine for depression. Id. Plaintiff testified that he sometimes still had problems with depression despite taking the medication. Tr. 68-69. Plaintiff stated that he still had anxiety issues and would sometimes get nervous, have trouble sleeping, or would have panic attacks that affected his breathing. Tr. 69. Plaintiff testified that he has panic attacks “a few times a week.” Id. Plaintiff testified that with his anxiety attacks he gets “short winded” and it feels as if he has a weight on his chest. Plaintiff noted that in the previous year he had a heart attack, but he has “had anxiety attacks that actually hurt worse than the heart attack did.” Id. Plaintiff stated that he uses breathing techniques to help with the panic attacks. Tr. 70. He stated that if he does his deep breathing exercises it takes “roughly about 30 minutes” for the panic attack to pass. Id. Plaintiff testified that when he is depressed he does not want to be around other people and socialize. He also stated that he sleeps a lot when he is depressed. Id. Plaintiff testified that his doctor told him to visit with friends or watch TV to alleviate his feelings of isolation. Id. Plaintiff stated that he visits his friends three or four times a week. Tr. 71. He testified that he watches TV shows that last 30-60 minutes but is unable to concentrate long enough to watch movies. Id. Plaintiff testified that he likes to hunt and fish but has not hunted in the past year because he cannot sit in a deer stand for a long period of time. Id. Plaintiff's counsel noted that Plaintiff stood during the hearing and Plaintiff confirmed that he has to change positions frequently. Tr. 71-72. Plaintiff testified that he does his own housework but he does tasks in spurts of 25-30 minutes at a time followed by 25-30-minute breaks. Tr. 72. Plaintiff testified that he cooks small meals such as sandwiches or frozen meals. Id. Plaintiff stated that his blood pressure is “all right” but he has a lot of dizzy spells when standing-on average once or twice a day. Tr. 73. Plaintiff confirmed that he takes metformin twice a day for diabetes, and he was recently given a prescription for diabetic shoes after undergoing a nerve conduction study. Id. Plaintiff also noted that he takes medication for reflux. Tr. 74.

         In response to follow-up questions from the ALJ Plaintiff testified that, other than the stimulator, he has had shots in his back that did not help, and he has pain medication. Tr. 74. Plaintiff confirmed that the stimulator was disconnected for a short period of time after he broke his leg, but he recently started using it again. Tr. 74-75. Plaintiff testified that he had physical therapy, but it did not help. Tr. 75. Plaintiff stated that he was discharged from physical therapy because the pain would cause his blood pressure to rise. Id. Plaintiff stated that one doctor discussed back surgery with him but the doctor “said he did not want to risk doing the surgery because it could cause too many other problems.” Id. Plaintiff testified that he did not know of any end date for his Workers' Compensation benefits. Id. Plaintiff stated that he is 5'7” tall and weighs approximately 210 pounds. Id. Plaintiff stated that he gained a lot of weight-up to 240 pounds-when he was taking Lyrica for fibromyalgia for his leg. Tr. 76. Plaintiff noted that once he was taken off the medication his “weight went back down.” Id.

         II. Discussion

         A. The Commissioner's Findings

         In his December 27, 2017 decision, the ALJ made the following findings of fact and conclusions of law:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2019.
2. The claimant has not engaged in substantial gainful activity since August 26, 2014, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: obesity; coronary artery disease; and lumbar radiculopathy (20 CFR 404.1520(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform the full range of sedentary work as defined in 20 CFR 404.1567(a).
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on March 23, 1971 and was 43 years old, which is defined as a younger individual age 18-44, on the alleged disability onset date. The claimant subsequently changed age category to a younger individual age 45-49 (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of disability because applying the Medical-Vocational Rules directly supports a finding of “not disabled, ” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from August 26, 2014, through the date of this decision (20 CFR 404.1520(g)).

Tr. 37, 39, 48-49.

         B. Legal Framework

         1. The Commissioner's ...


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