United States District Court, W.D. Virginia, Lynchburg Division
Robert G. Hamlett, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
K. MOON SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the Court on the parties' cross motions
for summary judgment (dkts. 13, 16), the Report and
Recommendation of United States Magistrate Judge Robert S.
Ballou (dkt. 18, hereinafter “R&R”), and
Plaintiff's Objections to the R&R (dkt. 19,
hereinafter “Objections”). Pursuant to Standing
Order 2011-17 and 28 U.S.C. § 636(b)(1)(B), the Court
referred this matter to Judge Ballou for proposed findings of
fact and a recommended disposition. Judge Ballou's
R&R advised this Court to deny Plaintiff's motion and
grant the Commissioner's motion. Plaintiff timely filed
his Objections, obligating the Court to undertake a de
novo review of those portions of the R&R to which
objections were made. See 28 U.S.C. §
636(b)(1)(B); Farmer v. McBride, 177 Fed.Appx. 327,
330 (4th Cir. 2006). Because Plaintiff's Objections lack
merit, the R&R will be adopted in full.
Standard of Review
reviewing court must uphold the factual findings of the ALJ
if they are supported by substantial evidence and were
reached through application of the correct legal standard.
See 42 U.S.C. §§ 405(g), 1383(c)(3);
Bird v. Comm'r of SSA, 669 F.3d 337, 340 (4th
Cir. 2012). Substantial evidence requires more than a mere
scintilla, but less than a preponderance, of evidence.
Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001).
A finding is supported by substantial evidence if it is based
on “relevant evidence [that] a reasonable mind might
accept as adequate to support a conclusion.”
Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir.
2005) (per curiam). Where “conflicting evidence allows
reasonable minds to differ as to whether a claimant is
disabled, ” the Court must defer to the
Commissioner's decision. Id. A reviewing court
may not “re-weigh conflicting evidence, make
credibility determinations, or substitute [its]
judgment” for that of the ALJ. Craig v.
Chater, 76 F.3d 585, 589 (4th Cir. 1996) (citation
omitted). “Ultimately, it is the duty of the [ALJ]
reviewing a case, and not the responsibility of the courts,
to make findings of fact and to resolve conflicts in the
evidence.” Hays v. Sullivan, 907 F.2d 1453,
1456 (4th Cir. 1990). Thus, even if the court would have made
contrary determinations of fact, it must nonetheless uphold
the ALJ's decision, so long as it is supported by
substantial evidence. See Whiten v. Finch, 437 F.2d
73, 74 (4th Cir. 1971).
Plaintiff does not object to the R&R's recitation of
the factual background and claim history in this case, I
incorporate that portion of the R&R into this opinion.
(See R&R at 2-6). By way of summary, Plaintiff
applied for (and was denied) disability insurance benefits
under the Social Security Act based on his Dupuytren's
contracture, residuals of a gunshot wound, HIV, and mood
disorder. (R&R at 2-3 (citing, e.g., R21,
108-12, 120-26, 177-85)).The ALJ concluded that Plaintiff is
incapable of performing his past relevant work as a painter
but nonetheless maintains the residual work capacity to
perform unskilled work involving simple, routine tasks that
do not require contact with the general public. (R24-25,
32-33; R&R at 3). Thus, the ALJ concluded that Plaintiff
is not disabled. (R33; R&R at 3). Plaintiff requested
that the Appeals Council review the ALJ's decision, but
the Appeals Council denied his request for review. (R1-4;
R&R at 3).
lodges three objections to the R&R. First, he contends
that the ALJ's decision regarding the weight of his
treating physician's opinions is not supported by
substantial evidence. (Objections at 2). Second, he argues
that the ALJ's assessment of his allegations regarding
his limitations is not supported by substantial evidence.
(Id. at 9-10). Third, he contends that the ALJ
failed to present a proper hypothetical question to the
vocational expert. (Id. at 8).
outset, the Court notes that Plaintiff's objections are,
in essence, the same arguments he presented to Judge Ballou.
Fed.R.Civ.P. 72(b) requires parties to object to a magistrate
judge's findings and recommendations “with
sufficient specificity so as reasonably to alert the district
court of the true ground for the objection.” United
States v. Midgette, 478 F.3d 616, 621 (4th Cir. 2007).
“Rehashing arguments raised before the magistrate judge
does not comply” with this requirement. Sandra L.
v. Berryhill, No. 7:17-cv-00417, 2019 WL 1140238, at *2
(W.D. Va. Mar. 12, 2019). “Indeed, objections that
simply reiterate arguments raised before the magistrate judge
are considered to be general objections to the entirety of
the report and recommendation” that have the same
effect as a failure to object. Id. (citing Veney
v. Astrue, 539 F.Supp.2d 841, 844-45 (W.D. Va. 2008)).
Here, although largely recycling arguments Judge Ballou
already considered, Plaintiff added some limited specific
critiques of the R&R. Accordingly, out of an abundance of
caution, the Court will undertake a de novo review
of Plaintiff's objections to the R&R.
Treating Physician's Opinion
first objects that the ALJ failed to properly weigh the
medical opinion evidence by giving little weight to the
opinions of his treating physician, Dr. James W. Gallagher.
(Objections at 2). In a September 30, 2015 opinion, Dr.
Gallagher wrote that Plaintiff “is unable to work due
to his medical conditions and medications he is currently
taking.” (R883). In a December 9, 2015 opinion, Dr.
Gallagher noted on a mental impairment questionnaire that
Plaintiff suffers from various symptoms, including paranoia
and hallucinations, and determined that Plaintiff was likely
to be absent from work more than three times a month due to
his impairments. (R884-888). The ALJ gave these opinions
little weight and afforded great weight to the state's
physicians and psychiatrists. (R29-30).
evaluating conflicting medical opinion evidence, an ALJ
generally must accord more weight to the medical opinion of
an examining source than to that of a nonexamining
source.” Testamark v. Berryhill, 736 Fed.Appx.
395, 397 (4th Cir. 2018) (citing 20 C.F.R. §§
404.1527(c)(1), 416.927(c)(1) and Brown v. Commissioner
of S.S.A., 873 F.3d 251 (4th Cir. 2017)). “[T]he
ALJ is required to give controlling weight to opinions
proffered by a claimant's treating [sources] so long as
the opinion is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in the
claimant's case record.” Id. at 397-98
(citing Lewis v. Berryhill, 858 F.3d 858, 867 (4th
ALJ declines to give controlling weight to a treating
source's opinion, “the ALJ must consider a
nonexclusive list of factors to determine the weight to be
given all medical opinions of record: (1) examining
relationship; (2) treatment relationship; (3) supportability
of the source's opinion; (4) consistency of the opinion
with the record; and (5) specialization of the source.”
Id. at 398 (citing 20 C.F.R. §§
404.1527(c)(2)-(6), 416.927(c)(2)-(6) and Brown, 873
F.3d at 268). The ALJ “must include a narrative
discussion describing how the evidence supports [her]
explanation of the varying degrees of weight [s]he gave to
differing opinions concerning the claimant's conditions
and limitations.” Id. (citing Woods v.
Berryhill, 888 F.3d 686, 695 (4th Cir. 2018)). An ALJ
may “credit the opinion of a nontreating and
nonexamining source if that opinion provides
‘sufficient indicia of supportability in the form of a
high-quality explanation for the opinion and a significant
amount of substantiating evidence, particularly medical signs
and laboratory findings; consistency between the opinion and
the record as a whole; and specialization in the subject
matter of the opinion.'” Id. (quoting
Woods, 888 F.3d at 695).
presents several arguments in support of this objection, all
of which are without merit. First, Plaintiff contends that
the ALJ impermissibly substituted her lay judgment by
“ignor[ing] the evidence supporting disability while
relying on other normal findings in the record that are not
determinative of disability.” (Objections at 4).
Specifically, Plaintiff argues that the ALJ simply
“pluck[ed] out some normal mental status findings from
the record” in finding that Dr. Gallagher's
opinions were “unsupported by ‘objective'
medical evidence.” (Id. at 2). Having reviewed
the ALJ's discussion of Dr. Gallagher's opinions
de novo, the Court finds no merit in Plaintiff's
contention that the ALJ impermissibly substituted her lay
opinions for the judgment of medical professionals. Plaintiff
points to no specific place in the ALJ's opinion, and the
Court finds no such place, where the ALJ inappropriately
“relied on [her] own observations and medical
judgments” in evaluating what weight to give Dr.
Gallagher's opinions. Brown, 873 F.3d at 271.
Rather, the ALJ grounded her analysis of Dr. Gallagher's
opinions in the objective medical evidence in the record.
(R29). Moreover, this is not a case where the ALJ
“simply cherrypick[ed] facts that support of finding of
nondisability while ignoring evidence that points to a
disability finding.” Lewis, 858 F.3d at 869.
After considering Plaintiff's impairments (including his
mood disorder and other mental impairments), (R21, 23), the
ALJ considered Dr. Gallagher's opinions in light of the
available medical evidence, including Dr. Gallagher's own
treatment notes. (R29).
Plaintiff takes issue with Judge Ballou's conclusion that
“the ALJ did not err by giving little weight to Dr.
Gallagher's opinions based in part on Mr. Hamlett's
daily activities.” (Objections at 5). Specifically,
Plaintiff objects to the ALJ's mention of his testimony
that he “would watch old movies on TV for most of the
day” in her explanation of why she gave Dr.
Gallagher's opinions little weight. (R29). The ALJ
mentioned this portion of Plaintiff's testimony only
briefly during her discussion of Dr. Gallagher's December
9, 2015 opinion. Indeed, the ALJ's primary focus in the
paragraph at issue is her conclusion that Dr. Gallagher's
own treatment notes contradict his December 9, 2015 opinion.
(R29). An ALJ is not categorically forbidden from referencing
a claimant's testimony about his daily activities in
assessing what weight to give a treating physician's
opinion. To the contrary, in declining to give a treating
physician's opinion great weight, an ALJ must consider
the “supportability of the source's opinion”
and the “consistency of the opinion with the record,
” which includes a claimant's relevant testimony
about daily activities. Testamark, 736 Fed.Appx. at
398. See also Johnson v. Barnhart, 434 F.3d 650, 658
(4th Cir. 2005) (upholding ALJ's consideration of