Jacobs v. Colvin

Filing 19

MEMORANDUM OPINION AND FINAL ORDER. The Court does hereby ADOPT AND APPROVE IN FULL the findings and recommendations set forth in the 16 Report and Recommendation of the United States Magistrate Judge filed on December 6, 2017. The plaintiffs 12 Motion for Summary Judgment is DENIED, the Defendants 14 Motion for Summary Judgment is GRANTED, and the Acting Commissioners final decision denying benefits to the Plaintiff is AFFIRMED. Signed by Chief District Judge Rebecca Beach Smith on 1/31/18. (bpet)

FILED
UNITED

STATES

DISTRICT

EASTERN DISTRICT

COURT

OF VIRGINIA

Norfolk Division

CLERK U.S. DISTRICT COURT
NnRFOLK. VA

ROBERT LEROY JACOBS,

Plaintiff,
V.

ACTION NO.

NANCY A.

2:16cv677

BERRYHILL,

Acting Commissioner of Social Security,
Defendant.

MEMORANDUM

This matter

OPINION AND

is before

the

Plaintiff, Robert Leroy Jacobs,
St Recommendation

Nancy A.

Berryhill,

Administration

that

the

denying

benefits.

finds

the

legal

substantial

and

ECF

the

Nos.

the

on the

Response

18.

and

of

the

the
The

the

Defendant,

Social
R&R

Security

recommended

for

Summary

Law

Judge's

claim

Law

came

from

Motion

for

For the reasons

standards

Objections

Administrative

the

Administrative

evidence.

17,

Defendant's

Plaintiff's

16.

ORDER

to the Magistrate Judge's Report

upholding

the

ECF No.

that

correct

grant

thereby

court

Acting Commissioner of

{"SSA") •

court

Judgment,

ruling

("R&R") /

FINAL

to

disability

stated herein,

Judge
a

("ALJ")

conclusion

insurance
this

court

applied
supported

the
by

I.

A. Factual & Procedural History^
On October 26, 2012,
insurance

benefits,

March 15, 2012,

denied the

stating

due to a

and left ankle,

the

for

that

bad back,

and diabetes.

request

Plaintiff

applied

he

August 13, 2015,

testimony

from

the

an

ALJ

and a vocational expert.

Plaintiff

amended

September 18, 2012.

R.

the
R.

disability,

309,

a

who

R.

hearing

322.^ The SSA
and again

at 219-21,
where

229-35.

he

received

represented by

was

counsel,

156-85. At the hearing,

onset

date

at 158-59.

On

on

left knee

at 14 9,

denied the Plaintiff's claim,
a

disabled

on August 27, 2013,

held

Plaintiff,

disability

problems with his

upon reconsideration on January 14, 2014.
On

became

R. at 272-75,

benefits

for

of

disability

August 26, 2015,

the

the

to
ALJ

finding that he had not been under

as defined in the Social Security Act.

R.

at 141

(citing 20 C.F.R. § 1520(g)).

On

September 21, 2016,

the

Appeals

Council

Plaintiff's request for review of the ALJ's decision.

Thus,
for

denied
R.

the

at 1-6.

the ALJ's findings stand as the final decision of the SSA
purposes

of

judicial

review.

See

42

U.S.C.

§§ 405(h),

^ The facts of this case are fully and accurately set forth
in the R&R. The court, however, will provide a brief outline of
the

relevant events.

^ Page citations to the record refer to the administrative
record
ECF No.

that
9;

the

Commissioner previously

see R&R at 2

n.1.

filed

with

the

court.

1383(c)(3);

20

administrative

C.F.R.

§ 404.981.

remedies,

on

November 29,

brought this action under 42 U.S.C.
review

of

the

SSA's

final

After

exhausting

2016,

§ 405(g),

decision.

ECF

the

all

Plaintiff

seeking judicial

No.

3.

The

Defendant

filed an Answer on February 23, 2017. ECF No. 8.
On . February 24,

States

Magistrate

2017,

Judge

provisions of 28 U.S.C.

Procedure
Order,

72(b).

ECF

ECF No. 11,

judgment

No. 10.

2017,

recommended

affirming

right

By copy of
to

file

recommendations
December 20,
ECF No.
No.

the

17,

written

made

2017,

SSA's

by

the

to

pursuant

United

to

the

and Federal Rule of Civil

the

Magistrate

filed cross motions

Magistrate

the R&R,

referred

Krask,

supporting

the

was

Following

April 26, 2017.

December 6,

No. 16.

J.

§ 636(b)(1)(B)

with

and

matter

Robert

the parties

along

and 30, 2017,

this

memoranda
ECF

final

for summary

on

March 28

Nos. 12-13,

Judge

filed

Judge's

14-15.

the

decision.

R&R,

which

R&R at 1,

the parties were advised of
objections

the

Magistrate

Plaintiff

filed

to

the

Judge.

On

ECF

their

findings

Id.

Objections

at
to

and the Defendant responded on January 3,

and

36.
the

On

R&R,

2018.

ECF

the

ALJ

used

to

18.

B.

In

evaluating

followed

the

determine

whether

the

SSA's
an

ALJ's Decision

Plaintiff's

five-step
individual

disability

evaluation
is

disabled.

claim,

process
R.

at 131-32;

20

C.F.R.

(1)

§ 404.1520(a).

was

engaged

in

severe impairment;
equals

a

The

(3)

performing

(4)
any

gainful

within

an

the

SSA's

impairment

relevant

work

function

capacity

C'RFC");^

and

prevents

him

engaging

in

from

the

Plaintiff:

activity;

(2)

had

a

had an impairment that meets or medically

had

past

considered whether

substantial

condition

impairments;

ALJ

listing

that
in

(5)

prevents

light

had

any

of

of

an

other

official

him

his

from

residual

impairment

substantial

that

gainful

employment. R. at 132-41; 20 C.F.R. § 404.1520(a)(4).
The

ALJ

substantial

found

gainful

suffered from the
bilateral

that

knee

the

activity

following

disorder,

mellitus,

disorder,

anxiety disorder,

ALJ

met

or

right

then determined

medically

that

the

defined

R.

severe

and

that

limitations.
determined

20
R.
that

C.F.R.
at 135.

of

the

obesity,

abuse.

these

R.

and

mood

132-33.

impairments

SSA's

at 133-35. At step four,

list

of

the ALJ found

to perform light work,

§ 404.1567(b),

Plaintiff

at

severe

within

upon

this

could

not

in

hypertension,

disorder,

conditions

Based

engaged

back disorder,

disorder,

substance

Plaintiff possessed an RFC
in

not

impairments:

ankle

none

had

September 18, 2012,

shoulder

equaled

official impairments.

since

left

diabetes

The

Plaintiff

subject
RFC,
return

to

as

certain

the

ALJ

then

to

his

past

^ The RFC is defined as "the most you can still do despite
your limitations." 20 C.F.R.

§ 404.1545(a).

relevant

work as

assembler,

However,
had

or

at

the

an automobile

worker

ability

body

shop

engage

in

including working as

in

or a

significant

Based

or

the ALJ found

to

products assembler,

at 140-41.

a

step five,

employment,

existed

in

detail manager,

clerical

numbers

upon

this

warehouse.

that

the

other

an

security guard,
R.

Plaintiff

substantial

in

the

finding,

and that

national

the

ALJ

still

gainful

information clerk,

checker,

at 139.

a

small

these

jobs

economy.

found

R.

that

the

followed

the

Plaintiff did not qualify as "disabled." R. at 141.
In

determining

two-step

process

the

Plaintiff's

detailed

in

RFC,

Social

the

ALJ

Security

Ruling

{"SSR")

96-7p, 61 Fed. Reg. 34,483-85 {July 2, 1996). R. at 135-36.^ The
first

step

looks

determinable

to

whether

impairment

that

there
could

is

an

underlying

reasonably

be

medically

expected

to

produce the claimant's alleged pain or other symptoms.

61 Fed.

Reg.

this,

the ALJ
limiting

at. 34,484-85.

next

evaluates

effects"

which

of

they

the

^

the claimant demonstrates

''the

intensity,

alleged

limit

persistence,

and

symptoms

and detennines

the

the

individual's

Id.

at

34,485.

about

the

activities.

statements

If

After

the

ALJ

intensity,

issued

ability

to

"[W]henever

the

persistence,

his

do

findings,

extent

basic

to

work

individual's

or

functionally

SSR 96-7p

was

superseded by SSR 16-3p, 81 Fed. Reg. 14,166 (Mar. 16, 2016).
Because SSR 16-3p was not in effect at the time of the ALJ's
decision, i t is not relevant to the analysis here.

limiting effects of pain or other symptoms are not substantiated
by

objective

medical

evidence,

the

adjudicator

must

make

a

finding on the credibility of the individual's statements based
on a

consideration of the entire case record."

Here,

the ALJ found that the Plaintiff's impairments could

reasonably be expected to

his

statements

limiting

Specifically,
establish

cause

concerning

effects

were

the

that

ALJ

[his]

objective

including,

U.S.

inter

the

their

not

alleged symptoms;

intensity,

entirely

found

that

medical

alia,

in his

November

Plaintiff

to

2012

support

records

("VA

Medical

Center"),

which

at 136.

.

.

.

Plaintiff

gait,"
had

"an

and

2013

records

Id.

The ALJ

this

finding,

compiled

at

independent

and

safe

found

The ALJ gave
M.D.,
Dr.

a

"no weight"

to

that

found

with

584,

opinions

Plaintiff

of

was

his

unable

to

work

degenerative

joint

to

back

disease

and

and

''smooth

the

cane"

and

711.

of Vincent Lee,
R.

at 136-38.

and in February 2015,

due

the

that

a

601,

staff physician at the VA Medical Center.

Lee opined in November 2014,

result

the

also

gait

lacked neck or muscle pain. R. at 136, 411,

the

Center in Hampton,

overall

that

to

caused

Plaintiff did not suffer neck or muscle pain and had a

unassisted

and

"fail[ed]

impairments

Department of Veterans Affairs Medical

Virginia

R.

daily routine."

evidence

however,

persistence,

credible.

the

musculoskeletal

him to become unproductive

provided

Id.

knee

that the

pain

as

arthritis.

a

R.

at 744-45,

753.

inconsistent

The

with

stated that

the

ALJ

pointed

Dr. Lee's

Plaintiff

753.

The

musculoskeletal

notes

that

from

displayed a

the musculoskeletal system,
at 137, .

out

ALJ

this

conclusion

February

full

2015,

range

of

was

which

motion of

and had no joint or muscle pain.
added

April 2015

some pain and crepitus with range of motion in the knees,"

and

findings."

imaging

R.

highlighted

at 137,

the

764,

"unremarkable,

knees

771,

resulted

792.

between

The

Dr.

in

ALJ

Lee's

"only

mild

additionally
February

2015

"patient cannot work due to back pain" and his

claim made

perform work

his

contradiction

remark that the
separate

of

also

Lee's

for

subsequent

was

Dr.

save

the

examination

that

R.

in a

that

less

same

month

that

the

than sedentary RFC.

Plaintiff

R.

at 138,

could

746-47,

753.

The
contrary

ALJ
to

August 2013

Dr.

found

for

of

at 138,

Chris
in

the

with

Plaintiff

only

660.

the left knee,

conclusions

example,

the

Bovinet,

R.

had

guarded

with

at 138,
a

range

that

were

mentioned

who
the

656-64.

normal

of

ALJ

D.O.,

conjunction

disability benefits.

shoulder and left knee,
R.

physicians'

For

examination

that

throughout,

other

Lee's.

findings

consultative

claim

noted

range

motion

of

the

performed

a

Plaintiff's

Dr.

Bovinet

of

motion

the

right

along with mild crepitus in both knees.

Dr. Bovinet diagnosed the Plaintiff with pain in
right shoulder,

and low back,

and opined that the

Plaintiff

did

"not

demonstrate

at 138,

661.

The

ALJ

also

source

of

limited range of light work.

disability" and could perform a

any

major

R.

referenced

overall

the

findings

of

state

agency medical consultants at Disability Determination Services,
who

similarly

concluded

that

the

Plaintiff

performing work in a limited light RFC.

R.

was

capable

at 139,

213. Lastly,

the ALJ gave significant weight to the forty percent
disability rating,
Soc.

Sec.,

(40%)

expressly taking into account Bird v.

699 F.3d 337,

343

(4th Cir.

2012)

of

VA

Comm'r

(holding that the

SSA must give substantial weight to a VA disability rating, but
may give

less

weight

to

it when the

such a deviation is appropriate). R.

record demonstrates

that

at 139, 695.

II.

Pursuant

court,

to

Federal

Rule

of

those portions of

party has specifically objected.
or modify,
the

in whole or in part,

Magistrate

instructions.

In
must

Procedure

having reviewed the record in its entirety,

de novo determination of

of

Civil

28 U.S.C.

reviewing

only

Judge,

a

determine

or

72(b),

the

shall make a

the R&R to which a

The court may accept,

reject,

the findings or recommendations

recommit

the

matter

to

him with

§ 636(b)(1)(C).

denial

of

whether

benefits by
the

SSA

the

used

SSA,

the

the

court

proper

legal

standard and whether substantial evidence in the record supports

the

decision to deny benefits.

42
8

U.S.C.

§ 405(g);

Johnson v.

Barnhart,

434

evidence

650,

653

(4th

Cir.

'is such relevant evidence as a

accept as

adequate

76 F.3d 585,
402

F.3d

U.S.

589

389,

grounds,

20

to support a

(4th Cir.

401

C.F.R.

evidence requires

"Substantial

reasonable mind might

conclusion.'"

1996)

(1971)),

2005).

Craig v.

Chater,

(quoting Richardson v.

superseded

§§ 404.1527(d)(2),

by

regulation

416.927(d)(2).

Perales,
on

other

Substantial

"more than a mere scintilla of evidence," but

"may be somewhat less than a preponderance."
V. Celebrezze,

368 F.2d 640,

"In

for

reviewing

642

Id.

(quoting Laws

(4th Cir. 1966)).

substantial

evidence,

[the

court

does]

not undertake to re-weigh conflicting evidence, make credibility
determinations,

[ALJ] ."

Id.

or

substitute

(citing Hays v.

[its]

judgment

Sullivan,

for

that

907 F.2d 1453,

of

1456

the

(4th

Cir. 1990)). If "conflicting evidence allows reasonable minds to
differ

defer

as

to

to whether

the

ALJ.

a

Id.

claimant

In

is

short,

benefits is appropriate only if

(1)

disabled,"

reversal

law.

of

court

the

should

denial

of

the record lacks substantial

evidence to support the ALJ's decision,
error of

the

or

(2)

the ALJ made an

See id.
III.

The Plaintiff raises two objections to the R&R.

First,

the

Plaintiff objects to the Magistrate Judge's "attempts to justify
the ALJ's failure to properly evaluate and weigh expert medical
opinion

evidence,

especially

those

of

treating

and

examining

medical

providers."

Second, " the

Pl.'s

Plaintiff

Obj.

at 1

objects

(citing

to

the

R&R

at 25-32).

Magistrate

Judge's

"attempts to justify the ALJ's failure to properly evaluate and

weigh Plaintiff's credibility." Id. at 2 (citing R&R at 32-35).
A. Treating Physician Rule

The

Plaintiff

arguing

that

evaluating
Mot.

expert

Summ.

objects

he

J.

to

initially

had

followed

medical

Magistrate

the

incorrect

opinion

("Pl.'s Mem.")

the

challenged

ALJ's

legal

evidence.

at 6,

ECF No.

Judge's

decision

standards

Pl.'s

13.

Mem.

by

in

Supp.

The Plaintiff now

justifications

for

upholding

a

treating

the ALJ's decision. Pl.'s Obj. at 1.

The

treating

physician's

physician

opinion

on

the

rule

requires

nature

and

that

severity

of

a

claimed

impairment to be entitled controlling weight,

if i t is based on

well-supported

inconsistent

other

medical

substantial

§ 404.1527(c)(2).

evidence

evidence

If

the

and

in

ALJ

the

finds

is

not

case

the

record.

20

treating

reject

the

opinion

outright;

determine its appropriate weight,

doing

so.

I^

(July 2, 1996) .

§ 404.1527;
To

SSR

determine

rather,

96-2p,

its

61

weight,

Fed.

ALJ

the
(1)

Reg.
ALJ

should

34,490-92

applies

the

the length of the

relationship between the physician and
10

he should

and explain the reasoning for

following non-exhaustive list of factors:

treatment

the

C.F.R.

physician's

opinion should not be entitled to controlling weight,
not

with

the

claimant,

and the frequency of examinations;

that

treatment

relationship;

physician's opinion;

record

as

a

(4)

whole;

specialist.

(2)

(3)

the nature and extent of

the

supportability

of

the

the consistency of the opinion with the

and

(5)

Johnson,

whether

434

the

F.3d

physician

at 654;

is

20

a

C.F.R.

§ 404.1527(c) (2)- (6) .

First,

the

appropriately
physician,
at 7-10.

weigh

Plaintiff

this

finding,

relies on reasons

use,

the

argues

that

opinion

of

the

Dr.

ALJ

Lee,

objects
R&R

to

the

at 25-30,

and arguments

that

failed

a

because he gave the opinion "no weight."
The

affirming

Plaintiff

treating
Pl.'s Mem.

Magistrate

arguing

to

Judge's

that

the ALJ did not

the

R&R

state or

and therefore the R&R's reasoning cannot be the basis for

affirming

the ALJ's

318

80

U.S.

finding

(1943).

Pl.'s

pursuant
Obj .

at

to
1.

SEC v.
Under

Chenery Corp.,

Chenery,

a

court

reviewing an agency decision can only consider the reasoning the

agency itself used. 318 U.S. at 93-95; Inova Alexandria Hosp. v.
Shalala,

244

F.3d

342,

350

(4th

Cir.

2001)

("The

required

explanation must be articulated by the agency at the time of its
action;

neither

explanation
"if

.

.

the

. [,

.

.

.").

decision

'is

and]

Soc. Sec.,

.

[the

remanding

court]

nor

However,

the

the

agency

alleged

may

error

overwhelmingly

supported

is a

time.'"

583 F. App'x 65,

waste of
67

(4th Cir. 2014)
11

by

supply

is

the

harmless

the

record

Bishop v.

Comm'r

(quoting Spiva v.

As true;

628

Ashcroft,

F.3d

346,

353

371 F.3d 182,

{7th

Cir.

190 n.8

2010));

{4th Cir.

s ^ Ngarurih v.

2004)

(applying the

harmless error doctrine to the Chenery principle).
The court agrees that the ALJ's decision to give Dr.

opinion no weight
the

extent

that

was
the

based on substantial
Plaintiff's

doctrine may have merit,
F.

App'x at 67.

objection

In any event,

Thus,

the

to

Chenery

See Bishop,

583

by using additional evidence from

the ALJ's

findings,

was

out

the

pointing

under

such error is harmless.

the record to support

merely

evidence.

Lee's

that

the Magistrate Judge

record,

as

a

whole,

is

consistent with the substantial evidence relied upon by the ALJ.
See

Wells

v.

Mar. 21, 2012)

record

to

As true,

2012

WL

966660,

at *3

{E.D.

Va.

(finding that using additional evidence from the

support

the ALJ's

prescribed by 42 U.S.C.

findings

was

"precisely

the

task

§ 405(g)").

The Plaintiff's contention that treating physician opinions
are entitled to at least some weight also fails here.

See Pl.'s

Obj . at 1-2; Pl.'s Mem. at 7-9

{"Even if . . . Dr. Lee's opinion

of the intensity,

or functionally limiting effects

of

the

pain are

evidence,

persistence,
not

fully

substantiated by

objective

medical

that would not reduce the opinion to a zero."). Courts

in the Eastern District of Virginia have found that affording a

treating physician's opinion no weight should be upheld as long
as

substantial

evidence

supports
12

the

decision.

E.g.,

Smith v.

Colvin,

V.

2015 WL 6125720,

Colvin,

Colvin,

v.

Sept. 30,

(E.D.

(E.D. Va. Oct. 16, 2015);

2015 WL 5793695, at *16-17

Nichols V.
Bryant

at *13

Colvin,

2014);

Va.

100 F.

Supp.

2014

Jordan

v.

July 16, 2014) .

sufficient

reasons

for

(E.D. Va. Sept. 29, 2015);

3d 487,

WL

505-08

5092743,

Colvin,

Thus,

2014

as

long

affording Dr.

C.F.R.

§ 404.1527(c)(2);

SSR

(E.D. Va.

at *6-7

2015);

(E.D.

Va.

WL

3640909,

at *9-11

as

the

provided

Lee's

his decision should be left untouched.
20

Parker

ALJ

opinion no weight,

See 42 U.S.C.
96-2p,

61

§ 405(g);

Fed.

Reg.

simply

reject

at 34,490-92.

Moreover,

and

importantly,

the

ALJ

did

Dr.

Lee's opinion without evaluating it.

ALJ

considered

Rather,

Dr. Lee's

the ALJ

reviewed

opinions
the

and

record as

not

See R&R at 25

found
a

them

whole,

("[T]he

wanting.").

and determined

that Dr. Lee's opinion deserved no weight in light of the entire
record.
from

R.

the

at 136-39.

record

supportability

that

and

Therefore,

even

physician,

the

heavily

against

The ALJ specifically pointed to evidence
showed Dr.

were

assuming

inconsistent
Dr.

supportability
according

Lee's

his

Lee
and

medical

with

opinions

the

record.

constitutes
consistency

opinion

lacked

a

treating

factors

controlling

Id.^

weight.

weigh
The

^ As stated previously, supra Part III.A., when a treating
physician opinion is not given controlling weight, the ALJ
assigns
its
weight
using
certain
factors;
these
include
supportability and consistency. See Johnson, 434 F.3d at 654; 20
C.F.R.

§ 404.1527(c).
13

Magistrate
evidence

Dr.

Judge

that

Lee's

record

correctly

the

ALJ

opinions

as

a

pointed

used

that

whole.

to

show

the

See

out

the

medical

inconsistencies

the

objective

between

Plaintiff

R&R

was

at 28-29;

disabled

the

at 136-39.®

R.

and

The

Magistrate Judge also noted the ALJ's finding that there was an

absence ' of

evidence

to

support

Dr.

Lee's

conclusion

that

the

Plaintiff was unable to work. R&R at 26-28.^ Accordingly, the ALJ
relied on substantial evidence in finding that Dr. Lee's opinion

was unsupported and inconsistent, and thus worthy of no weight.
Next,

the

the Plaintiff challenges the ALJ's failure to explain

weight

accorded

Pl.'s Obj.

at 2.

by

that

noting

opinions

of

numerical
record,
Plaintiff

the

although

Dr.

the

ALJ

or

the

Bovinet

he

considered

demonstrated
was

limitations.

consultative

examiners'

findings.

The Magistrate Judge addressed this

weight,
as

to

capable

by

of

did

state

them

the

not

agency

in

give

physicians

the
a

conjunction

with

the

conclusion

ALJ's

performing

expressly

challenge

that

the

light

work

with

added

R&R a t 29-31.

Lastly,

the

Plaintiff

Judge's medical knowledge,

questions

the

ALJ

and

Magistrate

suggesting it was impossible that one

could find that degenerative joint disease does not limit one's
use

of

hands

and

fingers.

Pl.'s

® See also supra Part I.B.
^ See also supra Part I.B.
14

Obj.

at 2.

This

allegation

misses the point. Neither the Magistrate Judge nor the ALJ ever
found

that

the

Plaintiff

lacked

serious

physical

impairments,

only that he did not meet the definition of disabled pursuant to

the Social Security Act.
reminds ' the

Plaintiff

determination

regarding

is

at 13 9-41;

that

left

disability

R.

to

the
the

are

R&R at 29-31.

task

of

making

Commissioner;

only

a

The court
disability

medical

persuasive.

See

opinions

20

C.F.R.

§ 404.1527(d); R&R at 25.

After reviewing the record ^
the

Magistrate

evaluation
evidence.

of

Judge

medical

Therefore,

correctly

opinions

novo,

the court finds

concluded

was

that

supported

the

by

that
ALJ's

substantial

the court defers to the ALJ's decision and

OVERRULES the Plaintiff's first set of objections.
B. Credibi1i ty Asses sment

The

Plaintiff

''boilerplate"

Plaintiff's
provide

language

testimony

sound

Purpose 5,

initially

argued

when

not

reasoning.

that

explaining

entirely
Pl.'s

the

ALJ

he

found

why

credible,

Mem.

thus

at 10

(citing

used

the

failing
SSR

to

96-7,

61 Fed. Reg. at 34,484). The Plaintiff now objects to

the Magistrate Judge's alleged "generalizations and assumptions"
used to support the ALJ's decision. Pl.'s Obj. at 2-3.
The court defers to credibility determinations by the ALJ,
see

Johnson,

"exceptional

434

F.3d

circumstances"

at 653,

exist.
15

and

See

upholds

Bishop,

them

583

F.

unless

App'x

at 68

Cir.

(citing

1997)).

reason

Inc.

"Exceptional

'credibility
findings

Eldeco,

v.

fact,

at

all.'"

McCullough

or

Envtl.

is

132

circumstances

determination

of

NLRB,

is

on

132

Servs.,

an

F.3d

Inc.,

5

1007,

include

unreasonable,

based

Edelco,

F.3d

cases

at 1011

928

a

other

reason

or

no

NLRB

(quoting

923,

(4th

where

contradicts

inadequate

F.3d

1011

v.

(5th

Cir.

1993)).

To. determine

a

claimant's

RFC,

the

ALJ

evaluates

the

alleged symptoms to determine the extent to which they limit the
claimant's ability to perform basic work activities.

§ 404.1529(a).® In doing so,
credibility

of

the

claimant's

at 34,485.

Although

the

subjective

ALJ

subjective

evidence

of

whole.

pain

medical

inconsistencies

claimant's

findings,

in

the

statements

and

C.F.R.

the ALJ makes a finding as to the

consideration of the record as a

objective

20

cannot

SSR 96-7p,

discount

intensity

the

ALJ may do

evidence

the

complaints

or

medical

61 Fed.

a

solely

history.

on

Reg.

claimant's

based

so when

conflicts

based

upon

there

between

See

20

are
the

C.F.R.

§ 404.1529(c) (2)- (4) .

The ALJ stated that the Plaintiff's testimony regarding his

symptoms was ''not entirely credible for the reasons explained in
this

decision."

R.

at 136.

® See supra Part I.B.
to evaluate a

The ALJ then gave a

"lengthy review

(detailing the two-step process used

claimant's RFC).

16

of the medical evidence"

Magistrate

Judge

cited

finding including,
treatment

the

at 134-39;

also

novo,

the

medical

daily

Def. ' s

ALJ

R&R at 33. The

used

to

support

his

the Plaintiff's very conservative

objective

Plaintiff's

see

record ^

evidence

inter alia,

history,

regarding

to support this finding.

findings,

activities.

Resp.

at 5-6.

and

Id.

After

testimony

at 33-35;
reviewing

R.
the

the court agrees with the Magistrate Judge and

finds the ALJ's decision to be supported by substantial evidence
and

thus

the

court

defers

to

his

decision.

Therefore,

the

court

OVERRULES the Plaintiff's second objection.
IV.

The court,

CONCLUSION

having reviewed the record in its entirety,

having made de novo determinations
filed

to

the

findings

and

Plaintiff's
Defendant's
Acting

R&R,

does

recommendations
Motion

Motion

for
for

Commissioner's

Plaintiff

The

hereby

Summary
Summary

final

in regard to the Objections

ADOPT

of

and

the

AND APPROVE

Magistrate

Judgment

Judgment

decision

IN

is

is

FULL

Judge.
DENIED,

GRANTED,

denying

benefits

the

The
the

and

the

to

the

i s AFFIRMED.

Clerk

is

DIRECTED

to

send

a

copy

of

this

Memorandum

Opinion and Final Order to counsel for the parties.
IT ,IS

SO

ORDERED.

I
Rebecca Beach Smith
January 31,

Chief Judge

2018

17