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Gallman v. Berryhill

United States District Court, D. South Carolina, Orangeburg Division

August 10, 2017

John Gallman, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          ORDER

          TIMOTHY M. CAIN UNITED STATES DISTRICT JUDGE

         Plaintiff John Gallman (“Gallman”), brought this action under 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security (“Commissioner”)[1] denying his claim for disability insurance benefits (“DIB”) under the Social Security Act (“SSA”). This matter is before the court for review of the Report and Recommendation (“Report”) of the United States Magistrate Judge, made in accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2)(a), D.S.C., concerning the disposition of social security cases in this district. (ECF No. 25).[2] The magistrate judge recommends affirming the Commissioner's decision denying benefits. Gallman timely filed objections (ECF No. 28), and the Commissioner has responded to those objections (ECF No. 31). Accordingly, this matter is now ripe for review.

         I. Background

         Gallman filed an application for DIB on January 12, 2010, alleging a disability with an onset date of April 1, 2009. His application was denied initially and on reconsideration. After waiving his right to appear and testify at a hearing before an Administrative Law Judge (“ALJ), the ALJ considered Gallman's claim without a formal hearing and denied his claim. Gallman sought review of the ALJ's decision by the Appeals Council, and on July 23, 2012, the Appeals Council declined to review the ALJ's decision. Gallman then appealed to this court, and on November 21, 2013, Gallman's claim was remanded for a hearing before an ALJ. On July 3, 2014, a hearing was held before an ALJ. Gallman and his attorney were present at the hearing, as well as a Vocational Expert (“VE”). On September 12, 2014, the ALJ denied Gallman's claims finding him not disabled under the SSA from the alleged onset date of April 1, 2009. Gallman again sought review of the ALJ's decision by the Appeals Council, and on April 1, 2016, the Appeals Council declined Gallman's request for review, making the ALJ's decision the final decision of the Commissioner. This action followed.

         The ALJ found that Gallman suffered from the following severe impairments: degenerative disc disease and gout. (ECF No. 11-1 at 22). The ALJ found Gallman was unable to perform his past relevant work, but despite some limitations, there were jobs that existed in significant numbers in the national economy that he could perform. (ECF No. 11-1 at 27). Therefore, the ALJ denied Gallman's claims finding him not disabled under the SSA from the alleged onset date through the date of his decision, September 12, 2014. (ECF No. 11-1 at 28).

         II. Standard of Review

         The federal judiciary has a limited role in the administrative scheme established by the SSA. Section 405(g) of the Act provides, “the findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .” 42 U.S.C. § 405(g). “Substantial evidence has been defined . . . as more than a scintilla, but less than a preponderance.” Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). This standard precludes a de novo review of the factual circumstances that substitutes the court's findings for those of the Commissioner. Vitek v. Finch, 438 F.2d 1157 (4th Cir. 1971). Thus, in its review, the court may not “undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] own judgment for that of the [Commissioner].” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).

         However, “[f]rom this it does not follow . . . that the findings of the administrative agency are to be mechanically accepted. The statutorily granted right of review contemplates more than an uncritical rubber stamping of the administrative agency.” Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969). Rather, “the courts must not abdicate their responsibility to give careful scrutiny to the whole record to assure that there is a sound foundation for the [Commissioner's] findings, and that this conclusion is rational.” Vitek, 438 F.2d at 1157-58.

         III. Analysis

         In his objections, Gallman contends that the Magistrate Judge erred by finding that the ALJ did not mischaracterize Gallman's work activity in 2013, and did not err in his evaluation of Gallman's credibility.

         A) Work Activity

         Gallman contends that in denying his claim the ALJ relied heavily on evidence that Gallman returned to work in 2013. Gallman contends that the ALJ mischaracterized the work as being more than thirty hours a week until April 2014, and then tapering to 15-20 hours per week. Specifically, the ALJ in his decision stated that “[n]otably, the wage information from the company revealed that the claimant worked more than thirty hours a week until April 2014, and then the hours tapered off to the 15-20 hours testified at the hearing.” In her Report, the Magistrate Judge acknowledges that the wage information does not show any work weeks where Gallman worked 30 hours or more. (Report at 18). However, the Magistrate Judge states that the ALJ did not repeat the alleged inconsistency in his RFC analysis and did not use it in his RFC analysis or as a basis for discrediting Gallman. Id.

         The ALJ noted an inconsistency between the company records and Gallman's testimony as to how many hours Gallman had worked before April 2014. Specifically, the ALJ stated that “the wage information from the company revealed that the claimant worked more than thirty hours a week until April 2014, and then the hours tapered off to the 15-20 hours testified at the hearing.” (ECF No. 11-1 at 21). However, the ALJ then noted that Gallman's part-time work still did not rise to the substantial gainful activity level. Id.

         Reviewing the wage information, the court notes that while the hours Gallman worked varied, before April 2014, there are at least a couple of weeks in which Gallman worked thirty hours or more. (ECF No. 11-4 at 28).[3] And many weeks in which he worked twenty to thirty hours a week, particularly in October and November 2013. (ECF No. 11-4 at 30, 36, 37, 38). As the ALJ noted, Gallman's hours seemed to taper off after April 2013, and then were more in line with the 15-20 hours Gallman testified at the hearing that he worked per week. Moreover, the ALJ did not find that because Gallman worked part-time, this meant he ...


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