Grille v. Colvin, Civ. Action No.: 15-6204 (FLW)

• Decision Date: 25 October 2016
• Docket Number: Civ. Action No.: 15-6204 (FLW)
• Parties: MICHAEL CHARLES GRILLE Plaintiff, v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY Defendant.
• Court: U.S. District Court — District of New Jersey

MICHAEL CHARLES GRILLE Plaintiff, v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY Defendant.

Civ. Action No.: 15-6204 (FLW)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

October 25, 2016

*NOT FOR PUBLICATION*

OPINION

WOLFSON, United States District Judge:

Michael Charles Grille ("Plaintiff" or "Grille") appeals from the final decision of the Acting Commissioner of Social Security, Carolyn W. Colvin ("Defendant"), denying Plaintiff disability insurance benefits under Title II of the Social Security (the "Act"). After reviewing the Administrative Record, the Court finds that the Administrative Law Judge's (the "ALJ") opinion was based on substantial evidence and, accordingly, affirms that decision.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff was born on September 13, 1954, and was 52 years old on his alleged disability onset date of December 31, 2006. See Administrative Record 53 (hereinafter "A.R."). Plaintiff worked as a self-employed general contractor. A.R. 37-39, 42. On February 29, 2012, Plaintiff applied for Social Security disability insurance benefits, complaining of foot and lower back pain. A.R. 38. Plaintiff's claims were denied on March 13, 2012, and again upon reconsideration on August 17, 2012. A.R. 65-67, 73. Plaintiff then requested a hearing, see A.R. 76, which was held on July 3, 2013, before ALJ Judge Nicholas Cerulli. A.R. 32-50. At the hearing, Plaintiff was the only witness who testified. See A.R. 32-50. On July 24, 2013, the ALJ issued a written decision, concluding that Plaintiff "was not under a disability within the meaning of the Social Security Act from December 31, 2006, through the date of last insured, December 31, 2008." A.R. 24. Specifically, the ALJ concluded that Plaintiff did not meet his burden at Step One of a five-step process required to determine whether an individual is disabled, and as such, the ALJ did not proceed to the remaining four Steps. Plaintiff requested review by the Appeals Council, which was denied on June 11, 2015. A.R. 4-6. Plaintiff then filed the instant Complaint on August 14, 2015.

A. Review of Testimonial Record

At the hearing on July 3, 2013, Plaintiff testified that he was a "self-employed" general contractor who owned a "small construction company." A.R. 42. Plaintiff generally explained that his responsibilities included building residential homes. A.R. 38. Plaintiff was also responsible for supervising the work done on the punch list, and he would walk through the house with the buyers prior to closing. A.R. 43. While he did not perform any administrative duties, see A.R. 40, Plaintiff did make managerial decisions, such as hiring and overseeing subcontractors. A.R. 41. Although Plaintiff "would draw... a minimal check each week" from the company for his labor, he "didn't really, really get paid until, until closing" of a house. A.R. 41. He further testified, "I don't think 2007 was too heavy. A lot of our closings came in I think 2008." A.R. 41.

Before Plaintiff testified at the hearing, his counsel requested that the ALJ amend the disability onset date to "July of 2008." See A.R. 37. Immediately thereafter, however, Plaintiff testified that his disability onset date was December 31, 2006, because his "ability to actually [do] work on a regular basis, you know, start[ed] to decline... prior to that I was you know six, seven days a week, low back, foot started acting up, and I was just unable to work that, you know, pace that I was prior to this." A.R. 38. In 2006, Plaintiff explained that he was "building at the time, you know, I basically [did] hands on, on the job site I was doing anything from foundations to light framework, roofing, HVAC work, which I originally started out the business with, basically handled - was hands on, on the entire project." A.R. 38. Plaintiff testified that he was working approximately "seven days a week" in 2006 because "[i]t was a busy time." A.R. 39.

In 2007, Plaintiff continued to build houses: "I would basically [do] pretty much whatever came up. Sometimes operating a piece of equipment on the days, we'd be putting in a sewer. Some other days we'd be pouring foundation, you know, it was, like I said I pretty much handled every aspect of the job." A.R. 38-39. That same year, however, Plaintiff testified that his "health started to deteriorate," and that he "wasn't working quite as much as, put it this way, at the level I was in 2006." A.R. 38. Because of his health, Plaintiff stated that his "days started to become shorter." A.R. 38. In addition, if Plaintiff had done strenuous work the prior day, "[he] was unable to perform the following day." A.R. 38-39. For instance, Plaintiff stated that, "if I [was] doing concrete work, you know a lot of time I wasn't able to you know get up and move the following day." A.R. 39. Despite his deteriorating health, Plaintiff testified that he "was probably going a good 50 hours, 50, 60 hours a week, which was pretty much a normal workweek." A.R. 39. Nevertheless, Plaintiff testified that he stopped working 50 to 60 hours a week "close to the end of, middle to the end of 2007." A.R. 40.

By 2008, Plaintiff "probably was down to about, I'd say about 40, 40 some odd hours. That's when my, my, the foot and ankle was rolling onto the outside of the foot, and it was really blowing up on me." A.R. 40. Plaintiff stated that he was working seven days a week, "but some days I'd be on it for four or five hours, you know, other days, if I felt good, it would be an eight-hour day, you know." A.R. 40. Plaintiff explained:

GRILLE: Yeah, [in] 2008 I started, started winding down, and I started to take on more HVAC work, which was a little, less, less taxing on the body. Like I said, I was unable to work at that kind of pace in 2008.

ALJ: Okay, and what's involved with HVAC work?

GRILLE: It's a little lighter work. You know, it's not something you're going to have to you know, you're not [pouring] concrete. You're not carrying lumber, and it's something that you're not necessarily on your feet eight, ten, twelve hours a day.

ALJ: Well how many hours would you be on your feet when you did this type of work?

GRILLE: Somedays I would be on my feet, you know, seven, eight hours, other days when I was unable to work, you know swelling persists I would be on my feet maybe an hour or I wasn't even able to work. I would be home icing it.

ALJ: Well, in 2007, did you ever miss time at work?

GRILLE: You know what, very rarely, very rarely in 2007. I might have had to work little - less hours, but no, I never missed a day of work.

ALJ: How about in 2008?

GRILLE: 2008, I did miss days, yes, sir.

ALJ: How often?

GRILLE: You know what, maybe one or two days a week.

ALJ: And just so, I understand correctly, sir, in 2008 you, you missed work one to two days per week, but you were working about 40 hours every week, is that correct?

GRILLE: Yeah, I would probably say on the average, close to about 40 hours, yeah.

A.R. 44-45. Furthermore, Plaintiff testified that he did not receive any special accommodations, and that he did not require any help in performing his responsibilities at his company, since "[t]he budget didn't really allow that you know, as far as hiring an assistant [or] whatever the case may be." A.R. 45. In 2009, however, Plaintiff testified that he started working "substantially less" hours. A.R. 45. Plaintiff explained, "I mean I would be you know, I would be working - I would just take basically jobs as they came in, small jobs, like a furnace replacement, so, 2009, I may have been working a day or two a week." A.R. 46. Because he experienced severe foot pain, Plaintiff was only able to work a couple of hours a day. A.R. 46. Despite the pain, Plaintiff stated, "I would try and get in maybe an eight-hour day in if I was doing furnace replacement, and I had to get the people heat, I would try and squeak out an eight-hour day out of it." A.R. 46.

At the conclusion of his testimony, Plaintiff's counsel was given leave to question Plaintiff, who testified that he stopped "working full weeks" sometime in June or July of 2008:

COUNSEL: In 2008, you stated you were doing 40 hours a week, although you might miss one or two days here and there, and then at some point in 2009 you were doing substantially less, only working one or two days a week. Did that change from working essentially a full week to working one or two days a week, did that occur before or after you saw the orthopedist.

GRILLE: That was before.

COUNSEL: Okay.

GRILLE: I saw him in, that had to be sometime in 2008.

COUNSEL: So did you make that transition to not working full weeks at some point in 2008.

GRILLE: Yes.

COUNSEL: Would you know approximately when?

GRILLE: I got to say sometime in June, July.

A.R. 47-48. Plaintiff's counsel again repeated his request: "in light of the hearing testimony, I think it would probably be prudent to amend the onset date to July of 2008, which seems to be when [Plaintiff] made a transition from working essentially full work weeks to one to two days per week." A.R. 50. The ALJ stated that he would take that request "under advisement." A.R. 50.

B. Review of ALJ's Findings

The ALJ issued a written decision on July 24, 2013. See A.R. 23-31. The ALJ first addressed Plaintiff's attorney's request to amend Plaintiff's disability onset date from December 31, 2006 to "July 2008." A.R. 23. The ALJ denied the request because Plaintiff had specifically testified that his disability began on December 31, 2006. A.R. 23. The ALJ then found that Plaintiff was not under a disability within the meaning of the Act from December 31, 2006, through the date last insured, December 31, 2008, and as such, Plaintiff was ineligible for Social Security benefits. A.R. 24. In particular, the ALJ made four findings of fact and conclusions of law:

(i) The claimant last met the insured status requirements of the Social Security Act on December 31, 2008 (Exhibits 16 and 18);

(ii) The claimant engaged in substantial gainful

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