Snider v. Astrue

Filing 29

MEMORANDUM OPINION. Signed by District Judge Michael F. Urbanski on 9/29/14. (mka)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
LINDA M. SNIDER,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

)
)
)
) Civil Action No. 7:13cv00030
)
)
) By: Michael F. Urbanski
)
United States District Judge
)
)

MEMORANDUM OPINION
This social security disability appeal was referred to the Honorable Robert S. Ballou,
United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1)(B), for proposed findings
of fact and a recommended disposition. The magistrate judge filed a report and
recommendation on August 11, 2014, recommending that plaintiff’s motion for summary
judgment be denied, the Commissioner’s motion for summary judgment be granted and the
Commissioner’s final decision be affirmed. Plaintiff has filed objections to the report, the
Commissioner has responded, and this matter is now ripe for the court’s consideration.
I.
Rule 72(b) of the Federal Rules of Civil Procedure permits a party to “serve and file
specific, written objections” to a magistrate judge’s proposed findings and recommendations
within fourteen days of being served with a copy of the report. See also 28 U.S.C.
§ 636(b)(1). The Fourth Circuit has held that an objecting party must do so “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, 622 (4th Cir.), cert denied, 127 S. Ct. 3032 (2007).
To conclude otherwise would defeat the purpose of requiring
objections. We would be permitting a party to appeal any

issue that was before the magistrate judge, regardless of the
nature and scope of objections made to the magistrate judge’s
report. Either the district court would then have to review
every issue in the magistrate judge’s proposed findings and
recommendations or courts of appeals would be required to
review issues that the district court never considered. In
either case, judicial resources would be wasted and the district
court’s effectiveness based on help from magistrate judges
would be undermined.
Id. The district court must determine de novo any portion of the magistrate judge’s report
and recommendation to which a proper objection has been made. “The district court may
accept, reject, or modify the recommended disposition; receive further evidence; or return
the matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3); accord 28
U.S.C. § 636(b)(1).
If, however, a party “‘makes general or conclusory objections that do not direct the
court to a specific error in the magistrate judge’s proposed findings and recommendations,’”
de novo review is not required. Diprospero v. Colvin, No. 5:13-cv-00088-FDW-DSC, 2014
WL 1669806, at *1 (W.D.N.C. Apr. 28, 2014) (quoting Howard Yellow Cabs, Inc. v. United
States, 987 F. Supp. 469, 474 (W.D.N.C. 1997) (quoting Orpiano v. Johnson, 687 F.2d 44, 47
(4th Cir. 1982))). “The court will not consider those objections by the plaintiff that are
merely conclusory or attempt to object to the entirety of the Report, without focusing the
court’s attention on specific errors therein.” Camper v. Comm’r of Soc. Sec., No. 4:08cv69,
2009 WL 9044111, at *2 (E.D. Va. May 6, 2009), aff’d, 373 F. App’x 346 (4th Cir.), cert.
denied, 131 S. Ct. 610 (2010); see Midgette, 478 F.3d at 621 (“Section 636(b)(1) does not
countenance a form of generalized objection to cover all issues addressed by the magistrate
judge; it contemplates that a party’s objection to a magistrate judge’s report be specific and
particularized, as the statute directs the district court to review only ‘those portions of the
report or specified proposed findings or recommendations to which objection is made.’”). Such
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general objections “have the same effect as a failure to object, or as a waiver of such
objection.” Moon v. BWX Technologies, 742 F. Supp. 2d 827, 829 (W.D. Va. 2010), aff’d,
498 F. App’x 268 (4th Cir. 2012); see also Thomas v. Arn, 474 U.S. 140, 154 (1985) (“[T]he
statute does not require the judge to review an issue de novo if no objections are filed”).
Additionally, objections that simply reiterate arguments raised before the magistrate
judge are considered to be general objections to the entirety of the report and
recommendation. See Veney v. Astrue, 539 F. Supp. 2d 841, 844-45 (W.D. Va. 2008). As
the court noted in Veney:
Allowing a litigant to obtain de novo review of her entire case
by merely reformatting an earlier brief as an objection
“mak[es] the initial reference to the magistrate useless. The
functions of the district court are effectively duplicated as
both the magistrate and the district court perform identical
tasks. This duplication of time and effort wastes judicial
resources rather than saving them, and runs contrary to the
purposes of the Magistrates Act.” Howard [v. Sec’y of Health
& Human Servs.], 932 F.2d [505,] [] 509 [(6th Cir. 1991)].
539 F. Supp. 2d at 846. A plaintiff who reiterates her previously-raised arguments will not
be given “the second bite at the apple she seeks;” instead, her re-filed brief will be treated as
a general objection, which has the same effect as would a failure to object. Id.
II.
In the midst of the myriad impairments and extensive treatment history documented
in the more than 1200 page administrative record,1 Snider draws the court’s attention to the
opinion of her long-time primary care physician, Dr. Kenneth Walker, as to the functional
limitations caused by her fibromyalgia. On January 19, 2011, Dr. Walker filled out a
Fibromyalgia Residual Functional Capacity (RFC) Questionnaire, in which he opined that

1 Detailed facts about Snider’s impairments and medical and procedural history can be found in the report and
recommendation (Dkt. # 26) and in the voluminous administrative transcript (Dkt. # 7). As such, they will not
be repeated here.

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Snider could sit less than 2 hours and stand/walk less than 2 hours in an 8-hour workday.
Dr. Walker indicated that Snider would need to take unscheduled breaks during the work
day “every couple of hours,” but did not indicate for how long. He opined that she could
occasionally lift less than 10 pounds and rarely lift 10 pounds, has significant limitations in
doing repetitive reaching, handling or fingering, and would be absent from work more than
four days per month as a result of her impairments. When asked if Snider’s impairments
were likely to produce “good days” and “bad days,” Dr. Walker checked “no” and
commented: “Honestly—all seem bad. Never happy here.” (R. 928-30.)
Snider argues that the magistrate judge erred in finding substantial evidence supports
the Administrative Law Judge’s (ALJ) decision to give no weight to Dr. Walker’s opinion.
Snider specifically takes issue with the ALJ’s explanation of the weight given to Dr. Walker’s
opinion and contends “the Magistrate Judge attempts to provide the explanation for the
ALJ’s rejection of Dr. Walker’s opinions not found in the denial decision itself.” Pl.’s
Objections, Dkt. # 27, at 11. The court cannot agree.
A.
The ALJ explicitly stated that she considered the opinion evidence in this case in
accordance with the requirements of 20 C.F.R. §§ 404.1527, 416.927. (R. 35.) These
regulations require the ALJ to consider: “(1) whether the physician has examined the
applicant, (2) the treatment relationship between the physician and the applicant, (3) the
supportability of the physician’s opinion, (4) the consistency of the opinion with the record,
and (5) whether the physician is a specialist.” Johnson v. Barnhart, 434 F.3d 650, 654 (4th
Cir. 2005) (citing 20 C.F.R. § 404.1527). The ALJ recited these factors in her opinion.
(R. 37.) The regulations also require the ALJ to “give good reasons” for not affording
controlling weight to a treating physician’s opinion. 20 C.F.R. §§ 404.1527(c)(2),
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416.927(c)(2). However, “a point-by-point articulation of each inconsistency [between the
treatment notes and a treating physician’s opinion as to a claimant’s functional capacity] is
not required for the court to understand the ALJ’s reasons for weight given the opinion.”
Hawley v. Colvin, No. 5:12-CV-260-FL, 2013 WL 6184954, at *4 (E.D.N.C. Nov. 25, 2013).
In this case, the ALJ sufficiently explained her reasons for rejecting Dr. Walker’s
opinion concerning Snider’s functional capacity, stating:
This Administrative Law Judge cannot give Dr. Walker[’]s
opinion controlling weight in light of the above factors, and
i[n] fact gives no weight to the opinion of Dr. Walker as his
opinion is not supported by the objective medical evidence or
his own treatment notes and Dr. Walker appears to have
based his opinion on the claimant’s subjective complaints.
(R. 38.) Lack of supportability and inconsistency with the record are both appropriate
reasons pursuant to Johnson and the regulations for the ALJ to have declined to adopt Dr.
Walker’s opinion. See Bishop v. Comm’r, No. 14-1042, 2014 WL 4347190, at *1 (4th Cir.
Sept. 3, 2014) (“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.”).
Moreover, the ALJ took note in her opinion of the fact that Dr. Walker was Snider’s
“family care physician” (R. 26), not a specialist, which is the fifth Johnson factor to be
considered and further supports the ALJ’s decision in this regard. Although the ALJ did not
specifically mention the first two Johnson factors in her analysis, it is clear that the nature
and extent of Snider’s examining and treating relationship with Dr. Walker was not lost on
the ALJ, as she outlined Snider’s extensive treatment history earlier in her opinion. (R. 2531.) These two factors militate in favor of according Dr. Walker’s opinion controlling
weight. The ALJ plainly determined, however, that other three Johnson factors tip the scales
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in the opposite direction. The court finds no error in the ALJ’s explanation of the weight
given to Dr. Walker’s opinion.
B.
Snider also contends that “a perceived lack of objective medical evidence as to the
disabling effect of fibromyalgia is not a reasonable basis for discounting Dr. Walker’s
opinions,” and argues it “demonstrates a failure to understand fibromyalgia or its
symptoms.” Pl.’s Objections, Dkt. # 27, at 4.2 Snider raised a similar argument on summary
judgment. The magistrate judge stated:
Here, the ALJ reviewed Snider’s voluminous medical records
documenting her persistent complaints of pain, and
considered and accounted for that evidence in arriving at her
RFC. The ALJ also considered the opinions of two
independent medical examiners who concluded that Snider’s
alleged symptoms were out of proportion to her examination,
and noted additional signs that Snider was exaggerating her
symptoms. Further, the ALJ did not discount the opinions of
Drs. Walker and McMahon based solely upon a lack of
objective evidence, but also relied upon the contradictory
opinions of other physicians in the record. Indeed, all other
medical opinions in the record conclude that Snider is
capable of performing at least a range of light exertional
work.
Report & Recommendation, Dkt. # 26, at 13. Snider cites to several statements in this
passage of the report and recommendation that she claims are erroneous. First, Snider

Snider’s reliance on Social Security Ruling 12-2p is misplaced. SSR 12-2p postdates the ALJ’s decision in this
case. Even if the ruling applies, however, it does not support Snider’s argument that objective evidence is not
relevant or necessary to this analysis. SSR 12-2p describes how the agency evaluates whether a claimant’s
fibromyalgia symptoms represent a medically determinable impairment. The Ruling specifically states:
2

As in all claims for disability benefits, we need objective medical evidence
to establish the presence of [a medically determinable impairment]. When
a person alleges [fibromyalgia], longitudinal records reflecting ongoing
medical evaluation and treatment from acceptable medical sources are
especially helpful in establishing both the existence and severity of the
impairment.
The Ruling further states that if objective medical evidence does not substantiate a claimant’s statements about
the intensity, persistence, and functionally limiting effects of her symptoms, the agency considers all of the
evidence in the record and makes a credibility determination. Here, as explained infra, the ALJ did just that.

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asserts that “contrary to the Magistrate Judge’s characterization of the record, the ALJ did
not consider the opinions of two independent medical examiners who concluded that
Snider’s symptoms were out of proportion to her examination.” Pl.’s Objections, Dkt. # 27,
at 12. The magistrate judge is referring to the evaluations of Drs. Leipzig and Wilson, who
examined Snider in connection with a worker’s compensation claim following a back injury
she claimed to have suffered on April 30, 2007 while working as a nursing assistant. Dr.
Wilson’s independent medical evaluation is not part of the record in this case. However, the
evaluation from Dr. Leipzig is in the record and it references Dr. Wilson’s findings:
In May of 2008, this patient had an independent medical
evaluation by Dr. Richard Wilson of Christiansburg. The
patient was diagnosed with lumbar sprain, anxiety and
diabetes. Dr. Wilson felt her symptoms were out of
proportion to her examination and felt that she would be
capable of a gradual return to full activity.
***
Independent medical evaluation by Dr. Richard Wilson, dated
May 5, 2008, provides excellent history and record review.
Dr. Wilson notes that the x-ray of the left hip was normal on
July 3, 2007. MRI of the lumbar spine, dated June 6, 2007,
demonstrates mild degenerative change, normal for age. Dr.
Wilson noted Dr. McMahon’s comment of the lumbar sprain
and chronic recurrent back pain for many years. There is a
note of Dr. Mink’s diagnoses of fibromyalgia, neuropathic
pain, arthralgia, and insulin-dependent diabetes mellitus. Dr.
Wilson felt that this patient has an uncomplicated lumbar
sprain with significant anxiety. Dr. Wilson is quite skeptical
of the fibromyalgia issues. He did feel that she was clearly at
maximum medical improvement.
(R. 906-07.)
For his part, Dr. Leipzig found Snider to appear “very anxious” upon examination.
(R. 907.) She reported “significant pain all over the lumbar spine with simple light touch,
stroke, or pinch. Head compression reproduces severe back pain report.” (R. 907.) He
stated: “Waddell sign demonstrates positive pinch, light touch, head compression,
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nonanatomic distribution, overexaggeration, reverse Lasegue’s and seated verses supine
straight leg raise.” (R. 907.)3 Dr. Leipzig diagnosed Snider with severe, chronic, allover,
non-anatomical back pain; no evidence of objective injury on April 30, 2007; history of
chronic low back pain; severe anxiety disorder with psychiatric overlay; multiple positive
Waddell signs indicating nonorganic basis of disease; and normal neurological examination.
(R. 908.) Dr. Leipzig further opined that Snider “is fully capable of full-duty employment
without restrictions” and “[t]he only issue which would keep this patient from return to
work would be her obvious desire to not return to work and obvious underlying psychiatric
comorbidity.” (R. 908.)
In her decision, the ALJ referenced the evaluations of Drs. Wilson and Leipzig,
taking note of Dr. Wilson’s opinion that Snider’s symptoms were out of proportion to her
examination and reciting Dr. Leipzig’s findings. (R. 28-29.) The ALJ gave only slight weight
to Dr. Leipzig’s opinion, recognizing that he “only saw the claimant once.” (R. 37.) She did
not consider the findings of Dr. Wilson, as documented by Dr. Leipzig, as a medical source
opinion, which is appropriate given that Dr. Wilson’s evaluation is not part of the record.
However, the findings of both Drs. Leipzig and Wilson, as set forth in Dr. Leipzig’s report,
plainly bear on the issue of credibility as to the intensity and severity of Snider’s symptoms.
As such, the court finds no error in either the magistrate judge or the ALJ’s consideration of
those findings for that purpose.
Snider also asserts that the magistrate judge incorrectly stated that all other medical
opinions in the record conclude Snider is capable of light work. Snider points to the opinion
of Dr. Devereaux, who saw Snider only once and checked a box stating she was “on total

3 In her objections, Snider insists that the ALJ’s statement that “some examinations have shown signs
consistent with symptom exaggeration” (R. 36) is not a proper interpretation of Dr. Leipzig’s findings,
suggesting instead that the positive Waddell’s signs may be explained by fibromyalgia. Pl.’s Objections, Dkt.
# 27, at 6-7. The court finds nothing improper about the ALJ’s interpretation of Dr. Leipzig’s findings.

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disability status until 1/12/09” but could not state whether her disability status was causally
related to her low back in injury of April 30, 2007. (R. 913.) Dr. Devereaux’s treatment
notes from that single visit on October 24, 2008 state “it would appear unlikely that [Snider]
would be able to return to her previous position.” (R. 1106.) The court notes that Snider’s
previous position as a certified nursing assistant was performed at the heavy exertional level.
(R. 1155.) While Dr. Devereaux does not explicitly state that Snider can perform light work,
there is nothing about his opinion that is inconsistent with such a finding.
Additionally, Snider contends that “the state agency physician who reviewed
Plaintiff’s second application for benefits in 2010 determined that she was limited to
sedentary work. TR, 47-58.” Pl.’s Objections, Dkt. #27, at 12 n.12. Snider cites to the
opinion of Dr. Michael Hartman, who conducted a review of the record on October 28,
2010. Although he found she could stand and / or walk for only 4 hours in an 8-hour
workday, compared to the ALJ’s finding that she could stand and / or walk for 6 hours, Dr.
Hartman determined Snider “has a limited light RFC” (R. 56), contrary to Snider’s
assertions. See 20 C.F.R. §§ 404.1567(b), 416.967(b) (defining light work).
Regardless, the medical expert, Dr. Ward Stevens, reviewing state agency physicians,
Drs. Richard Surrusco and Robert McGuffin, and independent medical examiner, Dr. James
Leipzig, all opined that Snider could work at the light exertional level. These opinions
provide substantial evidence to support the ALJ’s decision as to Snider’s residual functional
capacity.
C.
Finally, Snider argues that although the ALJ said she gave great weight to Dr.
Tessnear’s opinion, “it is difficult to discern that degree of deference” from the ALJ’s
decision, given her determination that Snider could return to her past relevant work as a
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production assembler or engage in other production-type work. Pl.’s Objections, Dkt. # 27,
at 10; see also Pl.’s Summ. J. Br., Dkt. # 15, at 6 n.5.4 In her January 25, 2011 psychological
evaluation of Snider, Dr. Tessnear concluded:
She is able to understand and follow simple instructions.
Concentration is disrupted by anxiety, especially when she is
asked to perform, as on mental status tasks. When she loses
her focus, she has much difficulty regaining it. She is easily
frustrated and needs encouragement to continue. She has
good social skills and is able to present in an appropriate
manner but has become self-conscious and nervous around
other people. She would have difficulty working with the
public and would do best in work situations that require
minimal, superficial contact with co-workers. Her fear of
heights and enclosed spaces would further limit settings in
which she could function adequately.
(R. 1039-40.)
Snider suggests that Dr. Tessnear’s findings as to her ability to concentrate are
inconsistent with the production-type jobs identified by the vocational expert and the ALJ.
She offers no evidence to support this contention, however. It is clear that the ALJ gave
great weight to the findings of Dr. Tessnear, limiting Snider as of the date of Dr. Tessnear’s
evaluation “to the performance of work that involves only occasional
interactions/cooperation with the general public, superficial contact with coworkers and
supervisors and only simple, routine, repetitive, unskilled tasks.” (R. 35.) The fact that the
ALJ did not incorporate a limitation based on Dr. Tessnear’s specific finding as to Snider’s
concentration is not error, especially in light of the fact that the reviewing state agency
psychologists found Snider has only mild difficulties in maintaining concentration,
persistence and pace. (R. 776, 841.)

4 Snider asserts that the magistrate judge failed to address this argument, which was initially raised in a footnote
in her summary judgment brief and she claims was “expanded upon during oral argument.” Pl.’s Objections,
Dkt. # 27, at 10 n.10.

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D.
Contrary to Snider’s assertions, the ALJ relied on all of the record evidence —not
solely the lack of objective evidence— in determining that the degree of disabling pain
claimed by Snider and reflected in Dr. Walker’s opinion does not render her disabled from
all work. The ALJ provided an extensive narrative of the treatment history and opinion
evidence. She cited to the numerous medical opinions as to the degree of Snider’s functional
limitations. The ALJ discharged her duty under 20 C.F.R. §§ 404.1529(c), 416.929(c) in
assessing Snider’s credibility as to the severity and limiting nature of Snider’s pain. To that
end, the ALJ found Snider’s claims not to be credible to the extent they are inconsistent with
the ALJ’s RFC assessment. Credibility determinations are emphatically the province of the
ALJ, not the court, and courts normally should not interfere with these determinations. See,
e.g., Chafin v. Shalala, No. 92–1847, 1993 WL 329980, at *2 (4th Cir. Aug. 31, 1993) (per
curiam) (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) and Thomas v.
Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964)); Melvin v. Astrue, 6:06 CV 00032, 2007 WL
1960600, at *1 (W.D. Va. July 5, 2007) (citing Hatcher v. Sec’y of Health & Human Servs.,
898 F.2d 21, 23 (4th Cir. 1989)). On this record, the court finds no reason to disturb the
ALJ’s credibility determination.
A different factfinder may have reached another conclusion in this case. The court,
however, is mindful of its limited role in reviewing social security disability appeals. It is not
the province of a federal court to make administrative disability decisions. Rather, judicial
review of disability cases is limited to determining whether substantial evidence supports the
Commissioner’s conclusion that the plaintiff failed to meet her burden of proving disability.
See Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); see also Laws v. Celebrezze, 368
F.2d 640, 642 (4th Cir. 1966). In so doing, the court must not “re-weigh the conflicting
11 

evidence, make credibility determinations, or substitute [its] judgment for that of the
[Commissioner].” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Hunter v.
Sullivan, 993 F.2d 31, 34 (4th Cir. 1992). In this case, substantial evidence supports the
decision of the ALJ.
III.
The court has reviewed the magistrate judge’s report, the objections to the report,
and the administrative record and, in so doing, made a de novo determination of those
portions of the report to which Snider objected. The court finds that the magistrate judge
was correct in concluding that there is substantial evidence in the record to support the
ALJ’s decision. As such, the magistrate judge’s report and recommendation will be adopted
in its entirety.
An appropriate Order will be entered to that effect.
Entered: September 29, 2014

Michael F. Urbanski
Michael F. Urbanski
United States District Judge

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