Jesse Bishop v. Commissioner of Social Security

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1042
JESSE ARTHUR BISHOP,
Plaintiff – Appellant,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:13-cv-00094-REP)
Submitted: August 14, 2014 Decided: September 3, 2014
Before MOTZ, KING, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Charles H. Cuthbert, Jr., Richard M. Cuthbert, CUTHBERT LAW
OFFICES, Petersburg, Virginia, for Appellant. Nora Koch, Acting
Regional Chief Counsel, Charles Kawas, Acting Supervisory
Attorney, Elizabeth A. Corritore, Assistant Regional Counsel,
Philadelphia, Pennsylvania; Dana J. Boente, United States
Attorney, Elizabeth C. Wu, Assistant United States Attorney,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jesse Arthur Bishop appeals from the district court’s
order adopting the report and recommendation of the magistrate
judge and granting summary judgment to the Commissioner in
Bishop’s suit seeking disability benefits under the Social
Security Act. After reviewing the briefs and the record on
appeal, we conclude that there was no reversible error in the
district court’s decision. Thus, we affirm substantially on the
reasoning of the magistrate judge, which was adopted by the
district court. Bishop v. Commissioner, No. 3:13-cv-00094-REP
(E.D. Va. Dec. 30, 2013).
In addition, we address certain aspects of Bishop’s
claims in further detail. Bishop argues that the Administrative
Law Judge (“ALJ”) erred in rejecting Bishop’s treating
physician’s opinion. According to Bishop, the ALJ’s reasoning,
namely, that the doctor’s opinion was not supported by Bishop’s
test results and medical record, should only have resulted in
giving the opinion less than controlling weight. Bishop avers
that his treating physician’s opinion was still entitled to some
weight, especially because the ALJ did not conduct the
appropriate analysis.
In evaluating medical opinions, an ALJ should examine
“(1) whether the physician has examined the applicant, (2) the
treatment relationship between the physician and the applicant,
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(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). An ALJ, however, “may choose to give less
weight to the testimony of a treating physician if there is
persuasive contrary evidence.” Hunter v. Sullivan, 993 F.2d 31,
35 (4th Cir. 1992).
Here, the ALJ noted that the treating physician’s
opinion appeared to mirror Bishop’s subjective statements of his
limitations, yet the opinion was inconsistent with the mild to
moderate diagnostic findings, the conservative nature of
Bishop’s treatment, and the generally normal findings during
physical examinations. On the basis of this reasoning, the ALJ
afforded no weight to the doctor’s “opinion and speculation.”
While the ALJ did not explicitly analyze each of the Johnson
factors on the record, the ALJ was clear that he concluded that
the doctor’s opinion was not consistent with the record or
supported by the medical evidence, which are appropriate reasons
under Johnson. Thus, given the specific and legitimate reasons
provided, the ALJ was permitted to reject the treating
physician’s opinion in its entirety. See Holohan v. Massanari,
246 F.3d 1195, 1202-03 n.2 (9th Cir. 2001) (noting that a
treating physician’s opinion may be rejected on the basis of the
relevant factors); see also Craig v. Chater, 76 F.3d 585, 589-90
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(4th Cir. 1996) (upholding rejection of treating physician’s
opinion where ALJ opined that doctor’s opinion was based on
“claimant’s subjective symptoms,” not supported by “clinical
findings or laboratory test results,” and contradicted by
physician’s office notes).
Next, Bishop avers that the magistrate judge’s
reliance on certain evidence supporting the conclusion that the
treating physician’s opinion was not consistent with Bishop’s
medical tests, physical examinations, and response to treatment
was improper, as the ALJ’s decision did not cite to this
evidence in support of its determination. Bishop relies on SEC
v. Chenery Corp., 318 U.S. 80, 87 (1943), for the proposition
that a reviewing court may not affirm an agency decision based
on reasoning that the agency itself never considered in its
administrative proceedings. However, even assuming Chenery is
applicable, any error is reviewed under the harmless error
doctrine. Thus, if the decision “is overwhelmingly supported by
the record though the agency’s original opinion failed to
marshal that support, then remanding is a waste of time.” See
Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010). Here, we
find no reversible error in the ALJ’s assessment of the treating
physician’s opinion.
Next, Bishop contends that the ALJ improperly
considered his credibility. Bishop relies heavily on
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Bjornson v. Astrue, 671 F.3d 640 (7th Cir. 2012). In that case,
the Seventh Circuit ruled that the ALJ had failed to connect the
medical evidence and the conclusion that the claimant was able
to work full time in a sedentary occupation. The court rejected
the ALJ’s determination that Bjornson lacked credibility as
“opaque boilerplate” and a “template.” The court also found it
“backwards” to consider the residual functional capacity prior
to the credibility determination. Id. at 645-46.
We find that the ALJ’s determination that Bishop’s
subjective complaints were not credible was supported by
substantial evidence. Here, while the ALJ’s language was
similar to that in Bjornson, the ALJ cited specific
contradictory testimony and evidence in analyzing Bishop’s
credibility and averred that the entire record had been
reviewed. Given that this case is not one of exceptional
circumstances, see Edelco, Inc. v. NLRB, 132 F.3d 1007, 1011
(4th Cir. 1997), we uphold the ALJ’s credibility determination.
Finally, we note that Bishop raises certain arguments
on appeal that were not raised in his objections to the
magistrate judge’s report and recommendation. The timely filing
of specific objections to a magistrate judge’s recommendation is
necessary to preserve appellate review of the substance of the
recommendation when the parties have been warned that failure to
object will waive appellate review. Wright v. Collins, 766 F.2d
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841, 845-46 (4th Cir. 1985); see also Thomas v. Arn, 474 U.S.
140, 155 (1985). Because Bishop failed to file objections
regarding these additional claims, he has waived his right to
appellate review of the claims.
For the foregoing reasons, as supported by the record
before us, we affirm the district court’s judgment. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the Court and
argument would not aid the decisional process.
AFFIRMED
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