Jesse Arthur Bishop v. Commissioner of Soc Sec

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:13-cv-00094-REP Copies to all parties and the district court/agency. [999428317].. [14-1042]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1042

JESSE ARTHUR BISHOP,
Plaintiff – Appellant,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Robert E. Payne, Senior
District Judge. (3:13-cv-00094-REP)

Submitted:

August 14, 2014

Decided:

September 3, 2014

Before MOTZ, KING, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Charles H. Cuthbert, Jr., Richard M. Cuthbert, CUTHBERT LAW
OFFICES, Petersburg, Virginia, for Appellant. Nora Koch, Acting
Regional Chief Counsel, Charles Kawas, Acting Supervisory
Attorney, Elizabeth A. Corritore, Assistant Regional Counsel,
Philadelphia, Pennsylvania; Dana J. Boente, United States
Attorney, Elizabeth C. Wu, Assistant United States Attorney,
Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jesse Arthur Bishop appeals from the district court’s
order adopting the report and recommendation of the magistrate
judge

and

Bishop’s

granting
suit

summary

seeking

Security Act.

judgment

disability

to

the

benefits

Commissioner

under

the

in

Social

After reviewing the briefs and the record on

appeal, we conclude that there was no reversible error in the
district court’s decision.
reasoning

of

the

district court.

Thus, we affirm substantially on the

magistrate

judge,

which

was

adopted

by

the

Bishop v. Commissioner, No. 3:13-cv-00094-REP

(E.D. Va. Dec. 30, 2013).
In addition, we address certain aspects of Bishop’s
claims in further detail.
Law

Judge

(“ALJ”)

physician’s opinion.

Bishop argues that the Administrative

erred

in

rejecting

Bishop’s

treating

According to Bishop, the ALJ’s reasoning,

namely, that the doctor’s opinion was not supported by Bishop’s
test results and medical record, should only have resulted in
giving the opinion less than controlling weight.

Bishop avers

that his treating physician’s opinion was still entitled to some
weight,

especially

because

the

ALJ

did

not

conduct

the

appropriate analysis.
In evaluating medical opinions, an ALJ should examine
“(1) whether the physician has examined the applicant, (2) the
treatment relationship between the physician and the applicant,
2

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(3)

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the

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supportability

of

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the

physician’s

opinion,

(4)

the

consistency of the opinion with the record, and (5) whether the
physician is a specialist.”
654 (4th Cir. 2005).

Johnson v. Barnhart, 434 F.3d 650,

An ALJ, however, “may choose to give less

weight to the testimony of a treating physician if there is
persuasive contrary evidence.”

Hunter v. Sullivan, 993 F.2d 31,

35 (4th Cir. 1992).
Here,

the

ALJ

noted

that

the

treating

physician’s

opinion appeared to mirror Bishop’s subjective statements of his
limitations, yet the opinion was inconsistent with the mild to
moderate
Bishop’s

diagnostic
treatment,

findings,
and

physical examinations.

the

the

conservative

generally

normal

nature

findings

of

during

On the basis of this reasoning, the ALJ

afforded no weight to the doctor’s “opinion and speculation.”
While the ALJ did not explicitly analyze each of the Johnson
factors on the record, the ALJ was clear that he concluded that
the

doctor’s

opinion

was

not

consistent

with

the

record

or

supported by the medical evidence, which are appropriate reasons
under Johnson.

Thus, given the specific and legitimate reasons

provided,

ALJ

the

was

permitted

to

physician’s opinion in its entirety.
246

F.3d

1195,

1202-03

n.2

(9th

reject

the

treating

See Holohan v. Massanari,

Cir.

2001)

(noting

that

a

treating physician’s opinion may be rejected on the basis of the
relevant factors); see also Craig v. Chater, 76 F.3d 585, 589-90
3

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(4th

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Cir.

opinion

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1996)

where

“claimant’s
findings

(upholding

ALJ

opined

subjective

or

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rejection

that

test

treating

doctor’s

symptoms,”

laboratory

of

not

opinion

was

supported

results,”

and

physician’s
based

by

“clinical

contradicted

on

by

physician’s office notes).
Next,

Bishop

avers

that

the

magistrate

judge’s

reliance on certain evidence supporting the conclusion that the
treating physician’s opinion was not consistent with Bishop’s
medical tests, physical examinations, and response to treatment
was

improper,

as

the

ALJ’s

decision

did

evidence in support of its determination.

not

cite

to

this

Bishop relies on SEC

v. Chenery Corp., 318 U.S. 80, 87 (1943), for the proposition
that a reviewing court may not affirm an agency decision based
on

reasoning

that

the

agency

administrative proceedings.
applicable,
doctrine.
the

any

error

is

itself

never

considered

in

its

However, even assuming Chenery is
reviewed

under

the

harmless

error

Thus, if the decision “is overwhelmingly supported by

record

though

the

agency’s

original

opinion

failed

marshal that support, then remanding is a waste of time.”
Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010).

to
See

Here, we

find no reversible error in the ALJ’s assessment of the treating
physician’s opinion.
Next,
considered

his

Bishop

contends

credibility.

that
Bishop

4

the

ALJ

relies

improperly
heavily

on

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Bjornson v. Astrue, 671 F.3d 640 (7th Cir. 2012).

In that case,

the Seventh Circuit ruled that the ALJ had failed to connect the
medical evidence and the conclusion that the claimant was able
to work full time in a sedentary occupation.
the

ALJ’s

determination

that

Bjornson

The court rejected

lacked

“opaque boilerplate” and a “template.”

credibility

as

The court also found it

“backwards” to consider the residual functional capacity prior
to the credibility determination.
We

find

that

subjective

the

ALJ’s

were

complaints

substantial

not

evidence.

similar

to

that

contradictory
credibility
reviewed.

Here,

in

Given

and

averred
that

determination

that

credible

was

supported

by

ALJ’s

language

was

while

Bjornson,

testimony
and

Id. at 645-46.

the

evidence

that

this

the

cited

is

in

record

specific

analyzing

entire

the

case

ALJ

Bishop’s

not

one

of

Bishop’s
had

been

exceptional

circumstances, see Edelco, Inc. v. NLRB, 132 F.3d 1007, 1011
(4th Cir. 1997), we uphold the ALJ’s credibility determination.
Finally, we note that Bishop raises certain arguments
on

appeal

that

were

not

raised

in

his

magistrate judge’s report and recommendation.

objections

to

the

The timely filing

of specific objections to a magistrate judge’s recommendation is
necessary to preserve appellate review of the substance of the
recommendation when the parties have been warned that failure to
object will waive appellate review.
5

Wright v. Collins, 766 F.2d

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841, 845-46 (4th Cir. 1985); see also Thomas v. Arn, 474 U.S.
140,

155

(1985).

Because

Bishop

failed

to

file

objections

regarding these additional claims, he has waived his right to
appellate review of the claims.
For the foregoing reasons, as supported by the record
before us, we affirm the district court’s judgment.

We dispense

with oral argument because the facts and legal contentions are
adequately

presented

in

the

materials

before

the

Court

and

argument would not aid the decisional process.
AFFIRMED

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