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Brown v. Colvin

United States District Court, D. South Carolina, Anderson/Greenwood Division

September 16, 2014

LEON BROWN, JR. Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


MARY G. LEWIS, District Judge.

This is a Social Security appeal in which Plaintiff seeks judicial review of the final decision of Defendant denying Plaintiff's claim for Disability Insurance Benefits (DIB). Plaintiff is represented by excellent counsel. The matter is before the Court for review of the Report and Recommendation (Report) of the United States Magistrate Judge suggesting to the Court that Defendant's decision be affirmed. The Report was made in accordance with 28 U.S.C. § 636 and Local Civil Rule 73.02 for the District of South Carolina.

The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The Court is charged with making a de novo determination of those portions of the Report to which specific objection is made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).

The Magistrate Judge filed the Report on July 25, 2014, Plaintiff filed his objections on August 11, 2014, and Defendant filed her reply on August 27, 2014. The Court has carefully considered the objections, but finds them to be without merit. Therefore, it will enter judgment accordingly.

Plaintiff contends that his disability commenced on August 8, 2010. The Administrate Law Judge (ALJ) denied his claim, and the Appeals Council declined Plaintiff's request for review-thus making the ALJ's denial of the claim Defendant's final decision for purposes of judicial review. As noted above, the Magistrate Judge recommends that the Court affirm Defendant's final decision. The Court will now consider Plaintiff's objections in turn.

First, Plaintiff objects to the Magistrate Judge's determination that the ALJ was correct in concluding that Plaintiff was able to return to his past work as a dispatcher. "Past relevant work is work that you have done within the past 15 years, that was substantial gainful activity, and that lasted long enough for you to learn to do it." 20 C.F.R. § 404.1560(b)(1). The Social Security regulations define substantial gainful activity as follows:

Substantial gainful activity is work activity that is both substantial and gainful:
(a) Substantial work activity. Substantial work activity is work activity that involves doing significant physical or mental activities. Your work may be substantial even if it is done on a part-time basis or if you do less, get paid less, or have less responsibility than when you worked before.
(b) Gainful work activity. Gainful work activity is work activity that you do for pay or profit. Work activity is gainful if it is the kind of work usually done for pay or profit, whether or not a profit is realized.

20 C.F.R. § 404.1572.

In Plaintiff's sworn testimony before the ALJ, he testified that he worked as a dispatcher for approximately one year until he was approved for disability from his federal job on or about August 9. 2010. Transcript 42-43, 64. But then, in a letter dated December 12, 2011, which Plaintiff submitted to the ALJ after his administrative hearing, he asserted in an unsworn statement that he "was assisting the dispatcher in some areas of the[ir] job. I did not [or] could not perform the full duties as a dispatcher. All I did was assist them in keeping the log up to date on vehicle outbound, return[, ] and putting some of the following week runs scheduled plus assigned driver into computer." Transcript 286.

Plaintiff argues that the ALJ "failed to consider [Plaintiff's] statements that he was simply assisting another dispatcher and that he never actually performed the job of dispatcher." Objections 1. And, according to Plaintiff, "[t]he Magistrate Judge merely reiterates the ALJ's decision that [Plaintiff] performed work as a dispatcher without providing an explanation as to how the ALJ complied with SSR 82-62, which requires the ALJ to provide a careful appraisal of the claimant's past work." Id. at 2. The Court is unpersuaded.

The ALJ made the following determination on the issue of Plaintiff's past work:

The vocational expert testified that the claimant has past work as a dispatcher (SVP 5, sedentary). I find that the claimant performed this work within 15 years prior to the time of adjudication of the claim, performed such work at substantial gainful activity levels, and performed such work for a time period sufficient to have learned the techniques, acquired information, and developed the facility needed for average performance in the job situation. Although claimant submitted a statement after the hearing that he did not perform "the full duties, " he described doing the work of a dispatcher for one year at the hearing. I note that the vocational expert described the specific ...

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