Lee v. Commissioner of Social Security Administration
Filing
17
ORDER RULING ON REPORT AND RECOMMENDATION adopting 12 Report and Recommendation, affirming the decision of the Commissioner. Signed by Honorable R. Bryan Harwell on 06/30/2015. (bshr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Thomas Ryan Lee,
Plaintiff,
v.
Carolyn W. Colvin, Acting
Commissioner of Social Security
Administration,
Defendant.
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Civil Action No.: 0:14-292-RBH-PJG
ORDER
This matter is before the Court after the issuance of the Report and Recommendation
(“R&R”) of United States Magistrate Judge Paige J. Gossett.1 Plaintiff Thomas Ryan Lee brought
this action pursuant to 42 U.S.C. § 405(g) and 1383(c)(3), seeking judicial review of a final decision
of the Commissioner of Social Security (“the Commissioner”), denying Plaintiff’s claim for
disability insurance benefits under Title II of the Social Security Act (“the Act”). In her R&R, the
Magistrate Judge recommends affirming the decision of the Commissioner.
FACTUAL FINDINGS AND PROCEDURAL HISTORY
Plaintiff applied for disability insurance benefits on April 20, 2011, alleging that he was
disabled beginning March 26, 2011. The application was denied initially, and on reconsideration.
Plaintiff requested a hearing before the Administrative Law Judge (“ALJ”) on October 31, 2011.
That hearing was held on January 25, 2013, and Plaintiff, represented by attorney Joel Humphries,
appeared and testified. A vocational expert also testified. The ALJ issued a decision dated March
22, 2013, finding that Plaintiff was not disabled. The ALJ’s overall findings were as follows:
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In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2) (D.S.C.), this matter was
referred to the Magistrate Judge.
1.
The claimant meets the insured status requirements of the
Social Security Act through June 30, 2015.
2.
The claimant has not engaged in substantial gainful activity
since March 26, 2011, the alleged onset date (20 CFR 404.1571 et
seq.).
...
3.
The claimant has the following severe
degenerative disc disease (20 CFR 404.1520(c)).
impairment:
...
4.
The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments listed in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 404.1520(d), 404.1525 and 404.1526).
...
5.
After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform medium work
as defined in 20 CFR 404.1567(c) except for work requiring lifting or
carrying more than 50 pounds; lifting or carrying of 26 to 50 pounds
more than occasionally; lifting or carrying of 25 pounds or less more
than frequently; standing and/or walking in combination for a total of
more than 6 hours in an 8 hour workday; sitting for more than 6 hours
in an 8 hour workday; more than occasional stooping or climbing
ladders, ropes, or scaffolds; or more than frequent balancing,
kneeling, crouching, crawling, or climbing ramps and ladders.
...
6.
The claimant is unable to perform any past relevant work (20
CFR 404.1565).
...
7.
The claimant was . . . 57 years old, which is defined as an
individual of advanced age, on the alleged disability onset date (20
CFR 404.1563).
8.
The claimant has at least a high school education and is able
to communicate in English (20 CFR 404.1564).
9.
Transferability of job skills is not material to the
determination of disability because using the Medical-Vocational
2
Rules as a framework supports a finding that the claimant is “not
disabled,” whether or not the claimant has transferable job skills (See
SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
...
10.
Considering the claimant’s age, education, work experience,
and residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20
CFR 404.1569 and 404.1569(a)).
...
11.
The claimant has not been under a disability, as defined in the
Social Security Act, from March 26, 2011, through the date of this
decision (20 CFR 404.1520(g)).
Tr. 51-60.
The ALJ’s finding became the final decision of the Commissioner when the Appeals
Council denied Plaintiff’s request for further review. On February 3, 2014, Plaintiff filed this action
seeking judicial review of the Commissioner’s decision. Compl., ECF No. 1. Both Plaintiff and the
Commissioner filed briefs, ECF Nos. 8, 9, 10, and the Magistrate Judge issued her Report and
Recommendation (“R&R”) on February 13, 2015, recommending that the Commissioner’s decision
be affirmed, R&R, ECF No. 12. Plaintiff filed timely objections to the R&R on February 23, 2015,
Pl.’s Objs., ECF No. 13, and the Commissioner replied on March 5, 2015, Def.’s Reply, ECF No.
14.
STANDARD OF REVIEW
The role of the federal judiciary in the administrative scheme established by the Act is a
limited one. The Act provides that “[t]he findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive . . . .” 42 U.S.C. § 405(g).
“Substantial evidence has been defined innumerable times as more than a scintilla, but less than
preponderance.” Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). “Substantial evidence”
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is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks and citations omitted).
This statutorily mandated standard precludes a de novo review of the factual circumstances
that substitutes the Court’s findings for those of the Commissioner. See Vitek v. Finch, 438 F.2d
1157, 1157–58 (4th Cir. 1971); Hicks v. Gardner, 393 F.2d 299, 302 (4th Cir. 1968). The Court
“must uphold the factual findings of the [Commissioner] if they are supported by substantial
evidence and were reached through application of the correct legal standard.” Hancock v. Astrue,
667 F.3d 470, 472 (4th Cir. 2012); see also Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir.
1973) (holding that the Court must uphold the decision supported by substantial evidence “even
should [it] disagree”).
“From this it does not follow, however, that the findings of the
administrative agency are to be mechanically accepted.” Flack v. Cohen, 413 F.2d 278, 279 (4th
Cir. 1969). “[T]he courts must not abdicate their responsibility to give careful scrutiny to the whole
record to assure that there is a sound foundation for the [Commissioner’s] findings, and that his
conclusion is rational.” Vitek, 438 F.2d at 1157–58; Thomas, 331 F.2d at 543.
Furthermore, a de novo review is conducted of the Magistrate Judge’s R&R. 28 U.S.C. §
636(b)(1). The R&R is only a recommendation to the Court and has no presumptive weight;
indeed, the responsibility to make a final determination remains with the district court. Mathews v.
Weber, 423 U.S. 261, 270–71 (1976). The Court is charged with making a de novo determination
of those portions of the R&R to which specific objection is made, and the Court may accept, reject,
or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter
to the Magistrate Judge with instructions. § 636(b)(1).
The right to de novo review, however, may be waived by the failure to file timely objections.
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The Court need not conduct a de novo review
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when a party makes only “general and conclusory objections that do not direct the [C]ourt to a
specific error in the [M]agistrate’s proposed findings and recommendations.” Id. Moreover, in the
absence of objections to the R&R, the Court is not required to give any explanation for adopting the
recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). In that event, however, the
Court must “‘satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.’” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
DETERMINATION OF DISABILITY
Under the Act, Plaintiff’s eligibility for the benefits he is seeking hinges on whether he is
under a “disability.” 42 U.S.C. § 423(a). The term “disability” is defined as the “inability to engage
in any substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months . . . .” Id. § 423(d)(1)(A). “The ultimate burden
to prove disability lies on the claimant.” Preston v. Heckler, 769 F.2d 988, 991 n.* (4th Cir. 1985).
A claimant may establish a prima facie case of disability based solely upon medical evidence by
demonstrating that her impairments meet or medically equal the listed impairments set forth in
Appendix 1 of Subpart P. 20 C.F.R. § 404.1520(d).
If such a showing is not possible, a claimant may also establish a prima facie case of
disability by proving that she could not perform her customary occupation as the result of physical
or mental impairments. See Taylor v. Weinberger, 512 F.2d 664, 666 (4th Cir. 1975). Because this
approach is premised on the claimant’s inability to resolve the question solely on medical
considerations, it then becomes necessary to consider the medical evidence in conjunction with
certain “vocational factors.” 20 C.F.R. § 404.1560(b). These factors include the claimant’s (1)
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“residual functional capacity,” id. § 404.1560; (2) age, id. § 404.1563; (3) education, id. §
404.1564; (4) work experience, id. § 404.1565; and (5) the existence of work “in significant
numbers in the national economy” that the individual can perform, id. § 404.1560.
If the
assessment of the claimant’s residual functional capacity leads to the conclusion that she can no
longer perform her previous work, it must be determined whether the claimant can do some other
type of work, taking into account remaining vocational factors. Id. § 404.1560. The interrelation
between these vocational factors is governed by Appendix 2 of Subpart P. Thus, according to the
sequence of evaluation suggested by 20 C.F.R. § 404.1520, it must be determined: (1) whether the
claimant is currently gainfully employed, (2) whether she suffers from some physical or mental
impairment, (3) whether that impairment meets or medically equals the criteria of Appendix 1, (4)
whether, if those criteria are not met, the impairment prevents her from returning to her previous
work, and (5) whether the impairment prevents her from performing some other available work.
ANALYSIS
The Magistrate Judge recommends affirming the decision of the Commissioner.
Specifically, the Magistrate Judge concludes (1) that the ALJ properly discounted Plaintiff’s
treating physician’s opinion, and (2) that the ALJ did not err in assessing Plaintiff’s credibility. In
his objections, Plaintiff argues that the Magistrate Judge erred in finding (1) that the ALJ properly
discounted the opinion of Plaintiff’s treating physician, and (2) that the ALJ’s assessment of
Plaintiff’s credibility was without error.
I.
The Opinions of Plaintiff’s Treating Physician
Plaintiff contends that the ALJ’s discounting of the Plaintiff’s physician’s opinions as
having “negligible weight” was reversible error. He claims that Dr. Behling’s opinions were
supported by medical evidence, that the specialist opinions with which the ALJ found Dr. Behling’s
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opinions inconsistent were not themselves appropriate, and that Dr. Behling’s opinions about
Plaintiff’s ability to work were not inconsistent with evidence about Plaintiff’s activities of daily
living. Finally, Plaintiff argues that even if Dr. Behling’s opinions should not be given “controlling
weight,” they should be given great deference under all the factors provided in 20 CFR 404.1527
and 416.927, factors Plaintiff argues the ALJ failed to adequately consider. In response, the
Commissioner argues that Plaintiff’s arguments are a repeat of arguments he made in his original
brief, and relies upon the Commissioner’s Memorandum in Support of the Commissioner’s
Decision, ECF No. 9, at 13-17, in which he argued that substantial evidence supported the ALJ’s
assessment of Dr. Behling’s opinions.
The medical opinion of a treating physician is entitled to controlling weight if it is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in the record. 20 C.F.R. § 404.1527(c)(2); Mastro v.
Apfel, 270 F.3d 171, 178 (4th Cir. 2001). Thus, “[b]y negative implication, if a physician’s opinion
is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should
be accorded significantly less weight.” Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996). Under
such circumstances, “the [Commissioner] holds the discretion to give less weight to the testimony
of a treating physician in the face of persuasive contrary evidence.” Mastro, 270 F.3d at 178 (citing
Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir.1992)).
If the Commissioner determines that a treating physician’s opinion is not entitled to
controlling weight, he must consider the following non-exclusive list of factors to determine the
weight to be afforded the physician’s opinion: (1) the length of the treatment relationship and the
frequency of examinations; (2) the nature and extent of the treatment relationship; (3) the evidence
with which the physician supports his opinion; (4) the consistency of the opinion; (5) whether the
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physician is a specialist in the area in which he is rendering an opinion; and (6) other factors that
support or contradict the opinion. 20 C.F.R. § 404.1527(c)(2)(i)-(ii); § 404.1527(c)(3)-(6); see also
Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005). The Commissioner must give specific
reasons, supported by the record, for the weight given to a treating physician’s medical opinion.
SSR 96-2p.
The Court finds the ALJ’s decision to give Dr. Behling’s medical opinions contained in a
September, 2011 Multiple Impairment Questionnaire “negligible weight” is supported by
substantial evidence, and without legal error.2 The ALJ met the factors to give Dr. Behling’s
opinion “negligible weight.” The ALJ noted that Dr. Behling was a family practitioner, who had
been providing Plaintiff’s general medical treatment “since at least June 2010.” Tr. 53. The ALJ
noted several medical tests performed by, or at the direction of, Dr. Behling, which largely showed
mild/ “unremarkable” findings. Id. The ALJ then found that Dr. Behling’s September, 2011
opinion, to which she gave “negligible weight,” showed a level of impairment inconsistent with Dr.
Behling’s own progress notes, as well as with the opinions of a specialist in neurosurgery and spine
care who consulted on Plaintiff’s case, and with the opinions of the state agency reviewers. Tr. 5657. The ALJ further found that Dr. Behling’s opinions relied heavily upon Plaintiff’s self-reported
symptoms, which were themselves inconsistent with Plaintiff’s daily activities, and thus not
credible. Tr. 57-58. Plaintiff’s arguments that (1) Dr. Behling’s opinions were supported by
medical evidence, (2) state agency reviewers were not appropriately qualified, and (3) Plaintiff
could be disabled while still engaging in activities of daily living do not contradict the substantial
2
The ALJ also noted an opinion from Dr. Behling contained in a November, 2011 letter that Plaintiff was disabled, and
gave this opinion “negligible weight.” Tr. 57 (citing Tr. 508). However, as noted by the Magistrate Judge, Plaintiff did
not appear to challenge the weighting of this opinion, and even if he had, the same analysis would apply as in regards to
the September, 2011 evaluation. R&R, ECF No. 12, at 8 n.3. In addition, the “issue of whether a claimant is disabled
or unable to work is reserved to the Commissioner and opinions by medical sources on that point are not entitled to
special significance.” Id. (citing 20 C.F.R. § 404.1527(d)).
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evidence the ALJ found to be inconsistent with Dr. Behling’s opinions. Accordingly, the Court
finds the Magistrate Judge’s recommendation to be proper.
II.
The Assessment of Plaintiff’s Credibility
The Magistrate Judge recommends finding that the ALJ’s assessment of Plaintiff’s
credibility is supported by substantial evidence, and without legal error. In his objections, Plaintiff
contends that the Magistrate Judge gave too much weight to Plaintiff’s errors in testimony about his
training/education, and failed to recognize that Plaintiff could be disabled for employment purposes
while still able to engage in activities of daily living. Plaintiff further argues that the Magistrate
Judge did not note that, contrary to the ALJ’s conclusion that Plaintiff could have received free
treatment at the VA Medical Center, any treatment he could have received at the VA Medical
Center would not have been free, a point Plaintiff raised in his letter to the Appeals Court. Finally,
Plaintiff argues that the Magistrate Judge relied too heavily on selected objective medical evidence,
and that the Judge failed to account for Plaintiff’s long work history in judging his credibility.
Under 20 C.F.R. § 404.1529(b), “the determination of whether a person is disabled by pain
or other symptoms is a two-step process.” Craig v. Chater, 76 F.3d 585, 594 (4th Cir. 1996). The
threshold requirement is that there be “a showing by objective [medical] evidence of the existence
of a medical impairment which could reasonably be expected to produce the actual pain, in the
amount and degree, alleged by [Plaintiff].” Id. (internal quotation marks omitted). Once the ALJ
concludes that this threshold requirement has been met, the ALJ must evaluate “the intensity and
persistence of [Plaintiff’s] pain, and the extent to which it affects her ability to work.” 3 Id. at 595.
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Specifically, the following factors relevant to one’s pain and symptoms will be considered by the
Commissioner: (1) the individual’s daily activities; (2) the location, duration, frequency, and intensity of the
individual’s pain or other symptoms; (3) factors that precipitate and aggravate the symptoms; (4) the type, dosage,
effectiveness, and side effects of any medication the individual takes or has taken to alleviate the pain or other
symptoms; (5) treatment, other than medication, the individual receives or has received for relief of pain or other
symptoms; (6) any measures other than treatment that the individual uses or has used to relieve pain or other symptoms
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“[T]his evaluation must take into account not only [Plaintiff’s] statements about her pain, but also
‘all the available evidence,’ including [Plaintiff’s] medical history, medical signs, and laboratory
findings; any objective medical evidence of pain . . . ; and any other evidence relevant to the
severity of the impairment, such as evidence of [Plaintiff’s] daily activities, specific descriptions of
the pain, and any medical treatment taken to alleviate it.” Id. (citations omitted). The ALJ may not
disregard or discredit Plaintiff’s statements about pain “solely because they are not substantiated by
objective medical evidence.” SSR 96-7p; see also Craig, 76 F.3d at 595. The Fourth Circuit has
held that once Plaintiff meets the “threshold obligation of showing by objective medical evidence a
condition reasonably likely to cause the pain claimed, [Plaintiff is] entitled to rely exclusively on
subjective evidence to prove the second part of the test, i.e., that [the] pain is so continuous and/or
severe that it prevents [Plaintiff] from working a full . . . day.” Hines v. Barnhart, 453 F.3d 559, 565
(4th Cir. 2006).
However,
[t]his is not to say . . . that objective medical evidence and other
objective evidence are not crucial to evaluating the intensity and
persistence of a claimant’s pain and the extent to which it impairs her
ability to work. They most certainly are. Although a claimant’s
allegations about her pain may not be discredited solely because they
are not substantiated by objective evidence of the pain itself or its
severity, they need not be accepted to the extent they are inconsistent
with the available evidence, including objective evidence of the
underlying impairment, and the extent to which that impairment can
reasonably be expected to cause the pain the claimant alleges she
suffers . . . .
Craig, 76 F.3d at 595. Finally, the ALJ’s “determination or decision must contain specific reasons
for the finding on credibility, supported by the evidence in the case record, and must be sufficiently
(such as lying flat on one’s back, standing for 15 to 20 minutes each hour, etc.); and (7) any other factors concerning the
individual’s functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. § 404.1529(c)(3).
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specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator
gave to the individual’s statements and the reasons for that weight.” SSR 96-7p.
The Court finds no error in the Magistrate Judge’s review of the ALJ’s assessment of Plaintiff’s
credibility. In evaluating subjective complaints of disability, the ALJ must take into account a
number of factors, including “daily activities,” and “treatment”. CFR § 404.1529(c)(3). Thus, the
ALJ had to, and did, take into account Plaintiff’s daily activities and medical treatments in
evaluating his subjective complaints, Tr. 52-58, and could, under Craig, use inconsistencies
between objective treatment and activities and subjective pain in assessing Plaintiff’s credibility.
Here, the ALJ found the claimant “not credible” when the “alleged severity of the claimant’s
subjective complaints” was evaluated under Craig, 20 CFR § 404.1529, 20 CFR § 416.929, and
SSR 96-7p. Tr. 58. Plaintiff argues that the ALJ did not take into account the cost of treatment at
the VA in concluding that Plaintiff could have accessed treatment at the VA, and thus improperly
assessed Plaintiff’s credibility on this point.4 At the hearing, however, Plaintiff testified that no
doctors other than Dr. Behling would see him due to costs. Tr. 102. The ALJ also noted that the
Plaintiff had previously received treatment at the VA Medical Center, which could tend to undercut
Plaintiff’s credibility in regard to the availability of other doctors who would treat him. Tr. 52.
Even assuming that the ALJ’s finding regarding the VA was in error, the ALJ gives other reasons
for the credibility finding. For example, the ALJ found that the claimant’s activities of daily living
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Plaintiff also appears to suggest that the case should be remanded for further findings regarding the plaintiff’s letter, as
the Appeals Council did not give reasons for summarily denying review. In Meyer v. Astrue, 662 F.3d 700 (4th Cir.
2011), the Fourth Circuit held that it is not necessary for the Appeals Council to state reasons for its decision not to
review the ALJ decision. When the Appeals Council receives additional evidence and denies review, the issue for the
reviewing court becomes whether the ALJ decision is supported by substantial evidence or whether a remand is
necessary for the ALJ to consider the new evidence. In Meyer, the plaintiff’s treating physicians had a policy not to
provide opinion evidence for Social Security proceedings. Therefore, the ALJ was not provided with any opinions by
treating physicians. After the issuance of the ALJ decision, the claimant was able to obtain an opinion letter from his
treating physician, and the Appeals Council made the letter a part of the record but found that it did not provide a basis
for changing the ALJ decision. The Fourth Circuit remanded the case for further fact-finding because “no fact finder
has made any findings as to the treating physician’s opinion or attempted to reconcile that evidence with the conflicting
and supporting evidence in the record.” Id at 707. In the case at bar, substantial evidence supports the ALJ’s credibility
decision. Therefore, it is not necessary to remand for further factual findings.
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did not support his subjective complaints and further that the objective medical evidence did not
support the alleged severity of the plaintiff’s symptoms.
Plaintiff is correct that a strong work history has been held to enhance a Plaintiff’s
credibility in a disability claim. Where a claimant has worked steadily for a number of years and
“[t]here is no evidence of malingering,” his credibility is enhanced. Lanning v. Heckler, 777 F.2d
1316, 1318 (8th Cir. 1985 (dictum); See also O’Donnell v. Barnhart, 318 F.3d 811, 817 (8th Cir.
2003); Felisky v. Bowen, 35 F.3d 1027, 1041 (6th Cir. 1994); Rivera v. Schweiker, 717 F.2d 719,
725 (2d Cir. 1983); Dobrowolsky v. Califano, 606 F.2d 403, 409 (3d Cir. 1979); Vitek v. Finch, 438
F.2d 1157, 1159-60 (4th Cir. 1971); Nanny v. Matthews, 423 F.Supp. 548, 551 (E.D.Va. 1976).
Here, however, Plaintiff’s long work history was outweighed by the substantial medical evidence,
and evidence about Plaintiff’s activities of daily living, which showed Plaintiff was not disabled.
Tr. 52-58. Even if, as Plaintiff claims, the ALJ focused on an error in regard to his schooling, an
ALJ is required to make credibility determinations, Hatcher v. Sec’y of Health & Human Svcs., 898
F.2d 21, 23 (4th Cir. 1989), and the ALJ’s findings here regarding Plaintiff’s credibility are
supported by substantial evidence about Plaintiff’s activities of daily living and treatments, and the
inconsistency between these and the plaintiff’s self-reported disability. Therefore, the Court finds
no reversible error in the ALJ’s assessment of Plaintiff’s credibility, and Plaintiff’s objections are
overruled.
CONCLUSION
The Court has thoroughly reviewed the entire record as a whole, including the briefs, the
Magistrate Judge’s R&R, Plaintiff’s objections to the R&R, Commissioner’s Response, and
applicable law. For the reasons set forth above and by the Magistrate Judge, the Court hereby
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overrules Plaintiff’s objections and adopts and incorporates by reference the R&R of the Magistrate
Judge. The Commissioner’s decision is AFFIRMED.
IT IS SO ORDERED.
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
June 30, 2015
Florence, South Carolina
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