United States District Court, D. South Carolina, Orangeburg Division
TIMOTHY M. CAIN UNITED STATES DISTRICT JUDGE
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”) 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.
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.
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.
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).
Standard of Review
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).
“[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.
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
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
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.
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). 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 ...