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Hamlett v. Berryhill

United States District Court, W.D. Virginia, Lynchburg Division

March 30, 2019

Robert G. Hamlett, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION

          NORMAN K. MOON SENIOR UNITED STATES DISTRICT JUDGE.

         This 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.

         I. Standard of Review

         A 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).

         II. Analysis

         Because 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)).[1]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).

         Plaintiff 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).

         At the 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.

         A. Treating Physician's Opinion

         Plaintiff 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).

         “When 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 Cir. 2017)).

         If the 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).

         Plaintiff 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).

         Second, 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 ...


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