CHRISTIANSON v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

Filing 20

REPORT AND RECOMMENDED DECISION re 11 Social Security Statement of Errors/Fact Sheet filed by CHARLES T CHRISTIANSON, II. Objections to R&R due by 9/22/2020. By MAGISTRATE JUDGE JOHN H. RICH III. (mnd)

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UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
CHARLES T. C.,
Plaintiff
v.
ANDREW M. SAUL,
Commissioner of Social Security,
Defendant

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No. 1:19-cv-00564-NT

REPORT AND RECOMMENDED DECISION1
This Social Security Disability (“SSD”) appeal raises the question of whether the
administrative law judge (“ALJ”) supportably found the plaintiff capable of performing work
existing in significant numbers in the national economy. The plaintiff seeks remand on the bases
that the ALJ erred in evaluating (i) his subjective complaints, including by mischaracterizing his
activities of daily living (“ADLs”), (ii) certain medical opinions, in part as a result of the ALJ’s
failure to order an updated consultative physical examination, and (iii) his physical residual
functional capacity (“RFC”). See Plaintiff’s Itemized Statement of Specific Errors (“Statement of
Errors”) (ECF No. 11) at 4-15. I find no error and, accordingly, recommend that the court affirm
the commissioner’s decision.
Pursuant to the commissioner’s sequential evaluation process, 20 C.F.R. § 404.1520;
Goodermote v. Sec’y of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the ALJ found, in

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This action is properly brought under 42 U.S.C. § 405(g). The commissioner has admitted that the plaintiff has
exhausted his administrative remedies. The case is presented as a request for judicial review by this court pursuant to
Local Rule 16.3(a)(2), which requires the plaintiff to file an itemized statement of the specific errors upon which he
seeks reversal of the commissioner’s decision and to complete and file a fact sheet available at the Clerk’s Office, and
the commissioner to file a written opposition to the itemized statement. Oral argument was held before me pursuant
to Local Rule 16.3(a)(2)(D), requiring the parties to set forth at oral argument their respective positions with citations
to relevant statutes, regulations, case authority, and page references to the administrative record.

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relevant part, that the plaintiff met the insured status requirements of the Social Security Act
through June 30, 2018, Finding 1, Record at 17; that, through his date last insured (“DLI”), he had
the severe impairment of a spine disorder, Finding 3, id.; that, through his DLI, he had the RFC to
perform medium work as defined in 20 C.F.R. § 404.1567(c), except that, in an eight-hour
workday, he could push or pull at medium weight limits, could occasionally stoop, crouch, crawl,
and climb ladders, ropes, and scaffolds, but could not work with tools that vibrate or at unprotected
heights, Finding 5, id. at 19; that, through his DLI, considering his age (45 years old, defined as a
younger individual, on his DLI), education (at least high school), work experience (transferability
of skills immaterial), and RFC, there were jobs existing in significant numbers in the national
economy that he could perform, Findings 7-10, id. at 23-24; and that he, therefore, had not been
disabled from May 2, 2017, his alleged onset date of disability, through his June 30, 2018, his DLI,
Finding 11, id. at 25. The Appeals Council declined to review the decision, id. at 1-3, making the
decision the final determination of the commissioner, 20 C.F.R. § 404.981; Dupuis v. Sec’y of
Health & Human Servs., 869 F.2d 622, 623 (1st Cir. 1989).
The standard of review of the commissioner’s decision is whether the determination made
is supported by substantial evidence. 42 U.S.C. § 405(g); Manso-Pizarro v. Sec’y of Health
& Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In other words, the determination must be
supported by such relevant evidence as a reasonable mind might accept as adequate to support the
conclusion drawn. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Sec’y of Health
& Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).
The ALJ reached Step 5 of the sequential evaluation process, at which stage the burden of
proof shifts to the commissioner to show that a claimant can perform work other than his past
relevant work. 20 C.F.R. § 404.1520(g); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987);

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Goodermote, 690 F.2d at 7. The record must contain substantial evidence in support of the
commissioner’s findings regarding the plaintiff’s RFC to perform such other work. Rosado v.
Sec’y of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).
The statement of errors also implicates Step 4 of the sequential evaluation process, at which
stage the claimant bears the burden of proving inability to return to past relevant work. 20 C.F.R.
§ 404.1520(f); Bowen, 482 U.S. at 146 n.5. At this step, the commissioner must make findings of
the plaintiff’s RFC and the physical and mental demands of past work and determine whether the
plaintiff’s RFC would permit performance of that work. 20 C.F.R. § 404.1520(f); Social Security
Ruling 82-62 (“SSR 82-62”), reprinted in West’s Social Security Reporting Service Rulings 19751982, at 813.
I. Discussion
A. Evaluation of Subjective Complaints
The plaintiff first asserts that “[t]he ALJ mischaracterized [his] activities of daily living as
representative of a lesser impairment than the record supported” and, “[i]n doing so, . . . failed to
properly assess the treatment records of [his] pain management provider which demonstrated the
ongoing treatment and impairment that [he] has on a daily basis.” Statement of Errors at 4. Yet,
an ALJ’s evaluation of a claimant’s subjective statements “is entitled to deference, especially
when supported by specific findings.” Frustaglia v. Sec’y of Health & Human Servs., 829 F.2d
192, 195 (1st Cir. 1987). The plaintiff fails to show that deference should not be accorded that
evaluation in this case.
The ALJ duly noted that the plaintiff had “alleged that he is disabled due to degenerative
disc disease, neuropathy of the feet, obesity, carpal tunnel syndrome, a shoulder impairment, and
a chronic pain syndrome which have significantly limited his ability to lift, squat, bend, sit, stand,

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walk, reach, use his hands, kneel, hear, climb stairs, remember, concentrate, and complete tasks.”
Record at 19-20 (citations omitted). However, she explained that she deemed his subjective
allegations not entirely consistent with the medical evidence and other evidence of record. See id.
at 20.
The ALJ found, in relevant part, that the evidence of record indicated that the plaintiff was
“capable of performing a wide range of” ADLs, “including caring for his personal needs and
hygiene, cooking simple meals, washing and drying dishes, doing small repairs, spot mopping
spills, shopping in stores, managing money, paying bills, and driving an automobile[,]” as well as
feeding and letting his dog out, letting chickens out of a coop, playing computer games, and
watching television “without apparent difficulties concentrating or persisting.” Id. at 21 (citations
omitted).
The plaintiff fails to explain which ADLs the ALJ purportedly mischaracterized, instead
contending that his ability to undertake activities in his own home and at his own pace should not
have weighed against his testimony that he had significant issues with movements such as lifting,
squatting, bending, sitting, standing, and walking. See Statement of Errors at 4, 6. He asserts that
“‘[o]ne does not need to be ‘utterly incapacitated’ in order to be disabled.’” Id. at 5 (quoting
Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001)).
Yet, as the commissioner notes, see Defendant’s Opposition to Plaintiff’s Statement of
Errors (“Opposition”) (ECF No. 13) at 4, “while a claimant’s activities of daily living, standing
alone, do not constitute substantial evidence of a capacity to undertake full-time remunerative
employment, . . . an [ALJ] properly may take such activities into consideration in assessing . . . a
claimant’s allegations,” Rucker v. Colvin, No. 2:13-CV-218-DBH, 2014 WL 1870731, at *7 (D.
Me. May 8, 2014). See also, e.g., Coskery v. Berryhill, 892 F.3d 1, 7 (1st Cir. 2018) (ALJ

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reasonably inferred that claimant’s daily activities, “including caring for himself and a dog,
maintaining his house, and grocery shopping,” were consistent with a capacity for light work,
consistent with Social Security Ruling 16-3p (“SSR 16-3p”), which “expressly requires that the
ALJ consider an applicant’s daily activities to evaluate the intensity, persistence, and limiting
effects of an individual’s symptoms”) (citation and internal punctuation omitted). In this case, as
well, the ALJ reasonably deemed the plaintiff’s ability to engage in a wide array of ADLs
inconsistent with his allegations of disabling symptoms and limitations. See Record at 21, 23. She
did not suggest that the plaintiff needed to demonstrate that he was incapacitated to prove
disability. See id. at 19-21, 23.
The plaintiff next faults the ALJ for characterizing his treatment as “‘conservative care’”
although “it involved regular assessments and narcotic medi[c]ation therapy.” Statement of Errors
at 5 (quoting Record at 21). Yet, the ALJ recounted that, following the plaintiff’s alleged onset
date of disability, he had “required and received . . . physical therapy, epidural steroid injections,
and medication management for his back pain[,]” including, as of November 2018, Advil and
Hysingla. Record at 21. She concluded, however, that the evidence “fail[ed] to demonstrate that
the [plaintiff] ha[d] suffered significant ongoing adverse side effects from these medications,” and
that he had “told examiners on multiple occasions in 2017 and 2018 that his pain medications
[were] helpful for his chronic pain symptoms.” Id. (citations omitted). The plaintiff does not
challenge these key findings. See Statement of Errors at 4-6.2

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The plaintiff likewise does not challenge the third basis on which the ALJ discounted his subjective allegations: that
they were inconsistent with objective findings on testing and examination. See Record at 20 (recounting that, despite
the plaintiff’s severe impairment of degenerative disc disease and findings of painful lumbar range of motion, muscle
spasms, difficulty squatting and rising, and a mildly antalgic gain, he had “remained neurologically intact on
examinations with full lumbar range of motion, negative straight leg raising tests, and no atrophy, decreased strength,
or significant motor, sensory, or reflex loss” and, despite his reports of neck pain, “radiographic studies of the cervical
spine performed on June 13, 2017 showed only early discogenic and degenerative changes, and magnetic resonance
imaging studies of the neck have been reported to have been unremarkable”) (citations omitted).

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In sum, the ALJ provided specific reasons for discounting the plaintiff’s subjective
allegations that he does not undermine. Her decision to discount those allegations, accordingly, is
entitled to deference.
B. Weight Given to Experts’ Opinions
Absent a material error in an ALJ’s resolution of conflicts in the evidence, including the
expert opinion evidence of record, this court defers to an ALJ’s weighing of such evidence – the
core duty of an ALJ. See, e.g., Rodriguez, 647 F.2d at 222 (“The Secretary may (and, under his
regulations, must) take medical evidence. But the resolution of conflicts in the evidence and the
determination of the ultimate question of disability is for him, not for the doctors or for the
courts.”); Malaney v. Berryhill, No. 2:16-cv-00404-GZS, 2017 WL 2537226, at *2 (D. Me. June
11, 2017) (rec. dec., aff’d July 11, 2017), aff’d, No. 17-1889, 2019 WL 2222474 (1st Cir. May 15,
2019) (“The mere fact that a claimant can point to evidence of record supporting a different
conclusion does not, in itself, warrant remand.”).
The plaintiff contends that the ALJ erred in (i) relying on the opinions of two agency
nonexamining consultants who did not have the benefit of review of later-submitted evidence,
(ii) failing to give great weight to the opinion of his treating provider, which he maintains was
consistent with the overall record, and (iii) substituting her lay opinions for those of experts in
matters not susceptible to common-sense judgments. See Statement of Errors at 7-11. I find no
material error. The plaintiff’s bid for remand on these bases, accordingly, amounts to an invitation
to the court to reweigh the evidence, which the court must decline.
1. Agency Nonexamining Consultants
The ALJ found the RFC opinions of agency nonexamining consultants Benjamin
Weinberg, M.D., and Archibald Green, D.O., “persuasive[,]” explaining:

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These assessments are generally well supported and consistent with the record as a
whole which shows that the [plaintiff]’s only severe medically determinable
impairment is degenerative disc disease, and that examiners have noted only painful
range of motion, muscle spasms, difficulty squatting and rising, and a mildly
antalgic gait. The [plaintiff] has remained neurologically intact on examinations
with full range of motion, negative straight leg raising tests, and no atrophy,
decreased strength, or significant motor, sensory, or reflex loss and has sought and
received only conservative care in the form of physical therapy, epidural steroid
injections, and medication management for his spine disorder since the alleged
onset date. While neither Dr. Green nor Dr. Weinberg actually examined the
[plaintiff], they did review all of the medical evidence available at the time, and
both are experienced medical consultants who are familiar with the Social Security
Administration’s rules and regulations. The evidence received since they rendered
their conclusions could not reasonably be expected to significantly alter these
assessments. The undersigned has therefore found these assessments to be
persuasive.
Record at 23 (citations omitted).
The plaintiff first argues that the ALJ “failed to offer supporting evidence as to why” the
opinions of Drs. Weinberg and Green “were more persuasive than those offered by [his] treating
sources.” Statement of Errors at 7. However, the ALJ cited exhibits in support of that finding, see
Record at 23, and the plaintiff fails to develop this argument further, see Statement of Errors at 79, effectively waiving it, see, e.g., United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
(“[I]ssues

adverted

to

in

a

perfunctory

manner,

unaccompanied

by some

effort

at developed argumentation, are deemed waived. It is not enough merely to mention a possible
argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for
the argument, and put flesh on its bones.”) (citations omitted).
The plaintiff next contends that the ALJ’s reliance on the Weinberg and Green opinions
was misplaced because they did not have the benefit of review of “substantial” later-submitted
evidence. See Statement of Errors at 7-9. He asserts that Drs. Weinberg and Green did not see
“almost a year of evidence from MaineGeneral Physiatry and MaineGeneral Physical Therapy,
both sources providing a substantial view of Plaintiff’s functioning during the latter part of the
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period of disability addressed by the ALJ[,]” id. at 7, and that Dr. Weinberg lacked the benefit of
review of the opinion of treating source Yusuf Abdi, PA-C, which Dr. Green discounted based on
the findings of agency examining consultant Fred Fridman, D.O., whose examination was so
limited that the plaintiff requested that he be examined by a different agency consultant, see id. at
9.
However, as the commissioner notes, see Opposition at 10-11, and the plaintiff’s counsel
conceded at oral argument, the plaintiff did not “specify what it is about or within each such exhibit
that would require the state-agency physicians to come to different conclusions[,]” Bourret v.
Colvin, No. 2:13-cv-00334-JAW, 2014 WL 5454537, at *4 (D. Me. Oct. 27, 2014). The sheer
volume of unseen evidence, standing alone, does not undermine an ALJ’s reliance on an agency
nonexamining consultant’s opinion.

See, e.g., id. (“the mere presence in the record of

[unreviewed] medical records” does not require remand). The plaintiff, thus, falls short of calling
into question the ALJ’s conclusion that this unseen evidence did not undermine reliance on the
Weinberg and Green opinions.
That Dr. Weinberg did not see the Abdi opinion does not provide a basis for remand, both
because Dr. Green had the benefit of review of that opinion and because, as discussed below, the
ALJ supportably discounted it. See, e.g., Strout v. Astrue, Civil No. 08-181-B-W, 2009 WL
214576, at *8-9 (D. Me. Jan. 28, 2009) (rec. dec., aff’d Mar. 5, 2009) (no error in reliance on
opinions of agency nonexamining consultants when unseen treating source opinions reflecting
greater restrictions were supportably rejected by ALJ). Dr. Green, in turn, supportably deemed
the limitations assessed by Dr. Abdi (mistakenly referred to as Andrew Thomas Dawson, the
plaintiff’s counsel) “in excess” of the “essentially normal” examination findings of Dr. Fridman.
Record at 94; compare id. at 316-17 (Fridman findings on October 5, 2017, examination) with id.

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at 474-79 (Abdi opinion dated December 14, 2017, assessing, inter alia, ability to lift/carry less
than 10 pounds, stand and/or walk for less than two hours in an eight-hour workday, and sit for
less than six hours in an eight-hour workday).
Finally, as the commissioner argues, see Opposition at 17, the ALJ did not impermissibly
construe raw medical evidence in concluding that evidence unseen by Drs. Weinberg and Green
did not call into question their conclusions, see, e.g., Anderson v. Astrue, No. 1:11-cv-476-DBH,
2012 WL 5256294, at *4 (D. Me. Sept. 27, 2012) (rec. dec., aff’d Oct. 23, 2012), aff’d, No. 131001 (1st Cir. 2013) (“While an [ALJ] is not competent to assess a claimant’s RFC directly from
the raw medical evidence unless such assessment entails a common-sense judgment, he or she is
perfectly competent to resolve conflicts in expert opinion evidence regarding RFC by, inter
alia, judging whether later submitted evidence is material[.]”) (citation and internal quotation
marks omitted).
Remand, accordingly, is unwarranted based on the ALJ’s treatment of the Weinberg and
Green opinions.
2. Abdi Opinion
The ALJ deemed the Abdi opinion “unpersuasive[,]” explaining that “[t]he extreme degree
of limitations cited is not supported in Mr. Abdi’s contemporaneous treatment records, and is
inconsistent with the evidence as a whole.” Record at 22. She noted, as she had in explaining the
weight given to the Weinberg and Green opinions, that the plaintiff’s only severe medically
determinable impairment was degenerative disc disease of the spine, that he had sought and
required only conservative care, and that, while he had been noted to have painful range of lumbar
motion, muscle spasms, difficulty squatting and rising, and a mildly antalgic gait, other findings
on examination had been negative. See id. She added:

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Mr. Abdi is a physician’s assistant and the [plaintiff]’s primary care physician, but
he appears to have based his opinion in large part on the [plaintiff]’s subjective
allegations, particularly where his December 12, 2017 treatment notes indicate that
the visit was for the purpose of filling out the [plaintiff]’s SSI paperwork.
Id. (citations omitted).
The plaintiff asserts that (i) “‘[t]he purpose for which medical reports are obtained does
not provide a legitimate basis for rejecting them[,]’” Statement of Errors at 10 (quoting Lester v.
Chater, 81 F.3d 821, 832 (9th Cir. 1995)), (ii) the opinions of treating sources generally are entitled
to more weight than those of non-treating sources, see id. (citing 20 C.F.R. § 404.1527(c)(2)),
(iii) PA-C Abdi had seen him for almost a year and a half and had the benefit of review of other
MaineGeneral records as of the time he provided his opinion, see id. at 11, and (iv) the ALJ
wrongly characterized his treatment as conservative, see id.
As a threshold matter, the plaintiff fails to come to grips with the ALJ’s key finding: that
the extreme limitations assessed by PA-C Abdi were inconsistent with the evidence as a whole,
including evidence demonstrating the existence of only one severe impairment and many negative
findings on examination. See Record at 22; Statement of Errors at 9-11. This, alone, constituted
an adequate reason to reject his opinion. See, e.g., 20 C.F.R. § 404.1520c(b)(2), (c)(1)-(2)
(supportability and consistency “are the most important factors” considered in determining the
persuasiveness of a medical source’s opinion; “[t]he more consistent a medical opinion(s) . . . is
with the evidence from other medical sources and nonmedical sources in the claim, the more
persuasive” it will be); Bailey v. Colvin, No. 2:13-cv-57-GZS, 2014 WL 334480, at *3 (D. Me.
Jan. 29, 2014) (inconsistency between a physician’s treatment notes and his or her opinion, and
the fact that an opinion “appear[s] on [its] face to be based primarily on the plaintiff’s subjective
allegations of pain[,]” are “well-recognized bases in Social Security law for rejection of a treating
physician’s conclusions”).
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Second, as the commissioner notes, see Opposition at 15, unlike in Lester, in which the
ALJ found it “significant that [the doctor’s] reports ‘were clearly obtained by the claimant’s
attorney for the purpose of litigation[,]’” Lester, 81 F.3d at 832, the ALJ in this case did not
discount the Abdi opinion on the basis that the purpose of the plaintiff’s visit was to have SSI
paperwork completed but, rather, because PA-C Abdi appeared to have based the assessed
limitations in large part on the plaintiff’s subjective allegations, as underscored by the visit’s
purpose, see Record at 22.
Third, the plaintiff’s reliance on 20 C.F.R. § 404.1527 is misplaced. For claims filed on
or after March 27, 2017, that regulation was superseded by 20 C.F.R. § 404.1520c, pursuant to
which the commissioner no longer “defer[s] or give[s] any specific evidentiary weight, including
controlling weight, to any medical opinion(s) . . ., including those from [a claimant’s] medical
sources.” 20 C.F.R. § 404.1520c(a). The instant claim was filed on July 10, 2017. See Record at
15.
Fourth, while PA-C Abdi’s treating relationship with the plaintiff and access to other
MaineGeneral records weighed in favor of adoption of the Abdi opinion, they did not compel its
adoption in the face of factors the ALJ supportably found cut against it, including its inconsistency
with the record as a whole.
Fifth, and finally, while the plaintiff contests that his treatment fairly can be characterized
as “conservative,” he neither disputes the ALJ’s description of it as consisting of “physical therapy,
epidural steroid injections, and medication management since his alleged onset date[,]” Record at

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22, nor explains how that course of treatment supports PA-C Abdi’s assessment of limitations, see
Statement of Errors at 11.3
Remand, accordingly, is unwarranted on the basis of the ALJ’s handling of PA-C Abdi’s
opinion.
C. Failure to Order New Physical Examination by Agency Consultant
The plaintiff next argues that the ALJ erred in failing to order a new physical examination
in response to his complaint that Dr. Fridman had spent only five minutes with him, an insufficient
amount of time to provide valid data, as a result of which he requested a physical examination
“with a different physician in a manner reasonably calculated to lead to actual, usable data.” Id.
at 12.
The plaintiff cites no authority for the assertion that the ALJ was required to obtain an
additional consultative examination upon his request. To the contrary, “[a]n administrative law
judge has discretion regarding whether to order a consultative examination.” Rudge v. Astrue, No.
1:11-cv-440-DBH, 2012 WL 5207591, at *2 (D. Me. Sept. 30, 2012) (rec. dec., aff’d Oct. 22,
2012); 20 C.F.R. § 404.1517 (“If [a claimant’s] medical sources cannot or will not give us
sufficient medical evidence about [his or her] impairment for us to determine whether [he or she
is] disabled or blind, we may ask [him or her] to have one or more physical or mental examinations
or tests.”) (emphasis added).
A failure to order such an examination does not constitute an abuse of discretion unless the
examination was necessary to enable the ALJ to determine disability. See, e.g., Bishop v.
Barnhart, 78 F. App’x 265, 268 (4th Cir. 2003) (“[A] consultative examination is required when

The plaintiff asserts that “the record shows that he tried and failed multiple medications, and sought additional
referrals for neurology and rheumatology to address numbness, tingling, and extremity pain.” Id. However, he neither
provides citations to the record in support of those propositions nor explains how they undermine the ALJ’s finding
that the Abdi opinion was unpersuasive.
3

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the evidence as a whole is insufficient to support a decision.”); McCuller v. Barnhart, 72 F. App’x
155, 160 n.5 (5th Cir. 2003) (“[T]he ALJ’s duty to undertake a full inquiry does not require a
consultative examination at government expense unless the record establishes that such an
examination is necessary to enable the ALJ to make the disability decision.”) (citation and internal
punctuation omitted).
Because a further consultative examination was not necessary to the determination of
disability, the ALJ having supportably relied on the Weinberg and Green opinions, remand is
unwarranted on the basis of this point of error.
D. RFC Assessment
The plaintiff, finally, asserts that the the ALJ’s conclusion that he “could perform medium
work with occasional stooping, crawling, and climbing of ladders, ropes, and scaffolds” is
unsupported by “[t]he weight of the evidence when combined with the opinion of Plaintiff’s
treating source Yusuf Abdi[.]” Statement of Errors at 13. He points to both raw medical evidence
and the Abdi opinion in support of the proposition that he was limited to a sedentary RFC with
less than two hours of standing and six hours of sitting and a need to alternate sitting and standing
at will. See id. at 14-15. He argues that, because the ALJ transmitted a flawed RFC in her
hypothetical question to the vocational expert present at his hearing, the ALJ’s Step 5 finding that
he was capable of performing work existing in significant numbers in the national economy is
unsupported by substantial evidence. See id. at 15.
This final point of error is unavailing for the reasons discussed above: the ALJ supportably
relied on the opinions of Drs. Weinberg and Green and rejected that of PA-C Abdi in determining

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the plaintiff’s RFC. The raw medical evidence on which he relies does not, in itself, compel a
conclusion that he was limited to a sedentary RFC with the above-described restrictions.4
Remand, accordingly, is unwarranted on the basis of this final point of error.
II. Conclusion
For the foregoing reasons, I recommend that the commissioner’s decision be AFFIRMED.
NOTICE
A party may file objections to those specified portions of a magistrate judge’s report or
proposed findings or recommended decisions entered pursuant to 28 U.S.C. § 636(b)(1)(B) for
which de novo review by the district court is sought, together with a supporting memorandum,
within fourteen (14) days after being served with a copy thereof. A responsive memorandum
shall be filed within fourteen (14) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right to de novo review
by the district court and to appeal the district court’s order.

Dated this 7th day of September, 2020.

/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge

4

The plaintiff asserts, for example, that he had difficulty with repetitive motions, a decreased range of motion in his
lumbar and cervical spine, pain in the right side of his neck when bending, pain with sitting, standing, walking,
pushing, or pulling, tenderness in his right trapezius, and heel pain, and that he had difficulty with medication
management due to its sedating effects and, yet, still experienced pain in his neck, back, and feet despite his
medication. See Statement of Errors at 14. The commissioner notes, however, that Drs. Weinberg and Green expressly
considered many of these reported symptoms. See Opposition at 19; Record at 80, 92-93.

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