Gregorie v. Commissioner of Social Security Administration

Filing 32

ORDER rejecting 26 Report and Recommendation, reversing the Commissioner's decision, and remanding for further administrative proceedings. Signed by Honorable David C Norton on 8/11/2014.(cahe, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
THEODORA LOUISE GREGORIE,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,1
Defendant.

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No. 6:12-cv-03275-DCN

ORDER

This matter is before the court on Magistrate Judge Kevin F. McDonald’s Report
and Recommendation (“R&R”) that this court affirm Acting Commissioner of Social
Security Carolyn Colvin’s decision denying plaintiff’s application for disability insurance
benefits (“DIB”). Plaintiff filed objections to the R&R. For the reasons set forth below,
the court rejects the R&R and remands the Commissioner’s decision.
I. BACKGROUND
Unless otherwise noted, the following background is drawn from the R&R.
A.

Procedural History

Plaintiff Theodora Louise Gregorie (“Gregorie”) filed an application for DIB on
May 27, 2009, alleging disability beginning on August 3, 2004. The Social Security
Agency denied Gregorie’s claim initially and on reconsideration. Gregorie requested a
hearing before an administrative law judge (“ALJ”), and ALJ Regina L. Warren held a
hearing on March 21, 2011. The ALJ issued a decision on April 15, 2011, finding

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Carolyn W. Colvin became the Acting Commissioner of Social Security on
February 14, 2013. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure,
Carolyn W. Colvin should be substituted for Michael J. Astrue as the defendant in this
lawsuit.
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Gregorie not disabled under the Social Security Act. Gregorie requested Appeals
Council review of the ALJ’s decision. The Appeals Council declined to review the
decision, rendering the ALJ’s decision the final action of the Commissioner.
On November 15, 2012, Gregorie filed this action seeking review of the ALJ’s
decision. The magistrate judge issued an R&R on April 24, 2014, recommending that
this court affirm the ALJ’s decision. Gregorie filed objections to the R&R on May 12,
2014 and the Commissioner responded to Gregorie’s objections on May 29, 2014. The
matter is now ripe for the court’s review.
B.

Medical History

Because Gregorie’s medical history is not relevant to the disposition of this case,
the court dispenses with a lengthy recitation thereof and instead notes a few relevant
facts. Gregorie was born on March 10, 1957, and was 47 years old on the alleged onset
date. She completed four years of college and has past relevant work experience as a
dispatcher and waitress.
C.

ALJ’s Decision

The ALJ employed the statutorily-required five-step sequential evaluation process
to determine whether Gregorie was disabled from August 3, 2004 through December 31,
2010, her date last insured. The ALJ first determined that Gregorie had not engaged in
substantial gainful activity during the relevant time period. Tr. 14. At the second step,
the ALJ found that Gregorie suffered from the following severe impairment:
degenerative disc disease of the lumbar spine. Id. At step three, the ALJ determined that
Gregorie’s impairment did not meet or equal one of the listed impairments in the
Agency’s Listing of Impairments (“the Listings”). Tr. 16; see 20 C.F.R. Part 404, Subpt.

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P, App’x 1. Before reaching the fourth step, the ALJ determined that Gregorie had the
residual functional capacity (“RFC”) to perform light work, as defined by 20 C.F.R.
§404.1567(b). Id. However, the ALJ determined that Gregorie should have the option to
sit and stand at will, would require use of an assistance device for prolonged walking,
could occasionally climb stairs, stoop, kneel, crouch, and crawl, and should never climb
ladders or be exposed to unprotected heights. Id. The ALJ found, at step four, that
Gregorie was able to perform past relevant work as a dispatcher, and therefore concluded
that she was not disabled during the period at issue. Tr. 20.
II. STANDARD OF REVIEW
This court is charged with conducting a de novo review of any portion of the
magistrate judge’s R&R to which specific, written objections are made. 28 U.S.C. §
636(b)(1). A party’s failure to object is accepted as agreement with the conclusions of
the magistrate judge. See Thomas v. Arn, 474 U.S. 140, 149-50 (1985). The
recommendation of the magistrate judge carries no presumptive weight, and the
responsibility to make a final determination rests with this court. Mathews v. Weber, 423
U.S. 261, 270-71 (1976).
Judicial review of the Commissioner’s final decision regarding disability benefits
“is limited to determining whether the findings of the [Commissioner] are supported by
substantial evidence and whether the correct law was applied.” Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990). Substantial evidence is “more than a mere scintilla of
evidence but may be somewhat less than a preponderance.” Id. (internal citations
omitted). “[I]t is not within the province of a reviewing court to determine the weight of
the evidence, nor is it the court’s function to substitute its judgment for that of the

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[Commissioner] if his decision is supported by substantial evidence.” Id. Where
conflicting evidence “allows reasonable minds to differ as to whether a claimant is
disabled, the responsibility for that decision falls on the [ALJ],” not on the reviewing
court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (internal citation omitted).
III. DISCUSSION
Gregorie objects to the R&R on four grounds, arguing the magistrate judge erred
in: (1) finding that substantial evidence supports the ALJ’s “rejection of the evidence
regarding Ms. Gregorie’s multiple impairments”; (2) finding that the ALJ properly
considered Gregorie’s credibility; (3) finding that the ALJ had properly applied the
treating physician rule; and (4) finding that the ALJ properly performed the required
function-by-function analysis. Because the court finds that Gregorie’s objection
regarding credibility is grounds for remand, it does not consider the remaining objections.
Determining whether an individual is disabled by pain or other symptoms is a
two-step process. First, an ALJ must determine whether a claimant has an underlying
impairment that has been established by objective medical evidence that would
reasonably be expected to cause subjective complaints of the severity and persistence
alleged. See 20 C.F.R. §§ 404.1529(b), 416.929(b); SSR 96–7p; Craig, 76 F.3d 585, 59196 (4th Cir. 1996) (discussing the regulation-based two-part test for evaluating pain).
The first part of the test “does not . . . entail a determination of the intensity, persistence,
or functionally limiting effect of the claimant’s asserted pain.” Craig, 76 F.3d at 594
(internal quotation omitted).
Second, and only after claimant has satisfied the threshold inquiry, the ALJ is to
evaluate “the intensity and persistence of the claimant’s pain, and the extent to which it

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affects her ability to work.” Id. at 595. This second step requires the ALJ to consider the
record as a whole, including both objective and subjective evidence, and a claimant’s
“statements about the intensity and persistence of pain or other symptoms or about the
effect the symptoms have on his or her ability to work may not be disregarded solely
because they are not substantiated by objective medical evidence.” SSR 96-7p.
“Assessment of the credibility of an individual’s statements about pain or other
symptoms and about the effect the symptoms have on his or her ability to function must
be based on a consideration of all of the evidence in the case record,” including a
claimant’s “prior work record.” Id. (emphasis added); see also 20 C.F.R. § 404.1529
(“[The SSA] will consider all of the evidence presented, including information about
your prior work record,” in evaluating the intensity and persistence of claimant’s
symptoms.).
In this case, the ALJ found that Gregorie’s “statements concerning the intensity,
persistence and limiting effects of [her] symptoms are not fully credible . . . .” Tr. 17.
However, the ALJ failed to mention Gregorie’s 20-year work record when considering
her credibility. See Tr. 33 (Gregorie testifying that she worked dispatch for 20 years and
worked part-time as a waitress for 18 of those years). Because SSR 96-7p and 20 C.F.R.
§ 404.1529 require the ALJ to at least consider a good work record in her credibility
determination, the case must be remanded to the Commissioner for further administrative
proceedings. See Osgood v. Astrue, No. 2:08-cv-3386, 2010 WL 737839 (D.S.C. Mar. 2,
2010) (remanding case because ALJ failed to mention plaintiff’s work history when
evaluating her credibility). When reviewing the case on remand, the ALJ should consider
Gregorie’s other allegations of error.

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IV. CONCLUSION
Based on the foregoing, the court REJECTS the magistrate judge’s R&R, and
REVERSES the Commissioner’s decision, and REMANDS the case for further
administrative proceedings.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
August 11, 2014
Charleston, South Carolina

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