Sara Moore v. Andrew Saul

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 26, 2020
• Docket: 20-1260
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-1260

SARA MOORE,

Plaintiff - Appellant,

v.

ANDREW SAUL, Commissioner of Social Security,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Anthony John Trenga, District Judge. (1:19-cv-00161-AJT-JFA)

Submitted: August 18, 2020 Decided: August 26, 2020

Before NIEMEYER, WYNN, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Clifford M. Farrell, MANRING & FARRELL, Columbus, Ohio, for Appellant. G. Zachary Terwilliger, United States Attorney, Meghan Loftus, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Sara Moore appeals from the district court’s order adopting the report and

recommendation of the magistrate judge and upholding the Commissioner’s denial of

disability insurance benefits. On appeal, she challenges the Administrative Law Judge’s

(ALJ) analysis of certain medical opinions in the record. We affirm.

We must affirm a Social Security Administration disability determination if the

“ALJ has applied correct legal standards and the ALJ’s factual findings are supported by

substantial evidence.” Bird v. Comm’r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir.

2012). “Substantial evidence is that which a reasonable mind might accept as adequate to

support a conclusion. It consists of more than a mere scintilla of evidence but may be less

than a preponderance.” Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015) (citation and

internal quotation marks omitted). We may not “reweigh conflicting evidence, make

credibility determinations, or substitute [its] judgment for that of the [ALJ].” Radford v.

Colvin, 734 F.3d 288, 296 (4th Cir. 2013) (internal quotation marks omitted).

I.

Moore first contends that the ALJ erred in failing to explicitly consider the portion

of Jeffrey Wilken, Ph.D.’s medical opinion that included work accommodation

suggestions. Moore does not dispute that the ALJ was free to reject this portion of Wilken’s

opinion; instead, she asserts that the ALJ was required to explicitly address this portion of

the opinion and explain why all the accommodations were not adopted as part of her

residual functional capacity (“RFC”).

2 “[T]he ALJ is required to give controlling weight to opinions proffered by a

claimant’s treating physicians so long as the opinion is well-supported by medically

acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the

other substantial evidence in the claimant’s case record.” Lewis v. Berryhill, 858 F.3d 858,

867 (4th Cir. 2017) (brackets and internal quotation marks omitted). When the ALJ does

not give controlling weight to a treating source’s opinion, the ALJ must consider this

nonexclusive list of factors to determine what weight to give the opinion of the treating

source and all other medical opinions in the record: (1) examining relationship,

(2) 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) specialization of the physician. 20 C.F.R. § 404.1527(c)(2)-(6); Johnson v. Barnhart,

434 F.3d 650, 654 (4th Cir. 2005). The ALJ’s decision “must contain specific reasons for

the weight given to the treating source’s medical opinion.” SSR 96-2p, 61 Fed. Reg.

34,490, 34,492 (July 2, 1996). We “cannot determine if findings are unsupported by

substantial evidence unless the [ALJ] explicitly indicates the weight given to all of the

relevant evidence.” Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984).

However, when the ALJ explains the RFC determination, and the unweighed

opinions are consistent with the RFC and the medical evidence in the record, failure to

weigh each opinion does not warrant remand. In addition, “an ALJ is not required to

discuss every piece of evidence submitted.” Black v. Apfel, 143 F.3d 383, 386 (8th Cir.

1998); see also Brault v. SSA, 683 F.3d 443, 448 (2d Cir. 2012) (same). Moreover, “[a]n

ALJ's failure to cite specific evidence does not indicate that such evidence was not

3 considered.” Black, 143 F.3d at 386. When the ALJ specifically references certain

findings in a medical opinion, it is “highly unlikely that the ALJ did not consider and reject”

other portions of the opinion, which were not mentioned but were inconsistent with RFC.

Wildman v. Astrue, 596 F.3d 959, 966 (8th Cir. 2010).

In this case, the ALJ considered Wilken’s opinion in a detailed manner and gave it

great weight. The ALJ noted that Wilken concluded that, with regard to learning and

memory, Moore’s performance was within the expected range and she had not suffered

abnormal memory loss. The ALJ compared Wilken’s observations and evaluations of

Moore with Wilken’s written opinion and found them to be in alignment. In addition, the

ALJ utilized Wilken’s report in determining Moore’s mental functioning and in

determining the weight to give another doctor’s report.

While the ALJ did not directly address Wilken’s list of possible work

accommodations, these accommodations do not appear to be limitations on Moore’s ability

to work. Wilken stated that Moore “likely would benefit” from the accommodations but

does not conclude that Moore would be unable to work without them. In addition, the

accommodations were only recommended if Moore returned to work shortly after the

examination date; however, Wilken suggested that Moore participate in formal cognitive

rehabilitation/remediation treatment (instead of immediately going back to work), after

which she would presumably not need accommodations. See Wildman, 596 F.3d at 959

(noting that, “[i]f an impairment can be controlled by treatment or medication, it cannot be

considered disabling”).

4 Finally, many of the accommodations are either consistent with the RFC or

irrelevant given the RFC. Specifically, the unskilled, low stress jobs, on which the ALJ

predicated his finding that Moore was not disabled, simply do not contemplate “tasks with

a high cognitive load,” “important meetings or conversations,” multi-tasking, or work that

requires editing of written work by “trusted colleagues,” as mentioned in the

accommodations. Many of the “accommodations” delineated in Wilken’s report were

largely predicated on work of a more challenging nature, which the ALJ eliminated

altogether.

Thus, we find that the ALJ properly considered and weighed Wilken’s opinion.

While the ALJ did not explicitly address each of the accommodations, it is unreasonable

to expect that the ALJ will recite every recommendation in every opinion and provide

different reasoning for accepting or rejecting each portion. Short-term, possible

accommodations were generally irrelevant to Moore’s RFC and, as such, the failure to

explicitly address them was not error.

II.

Next, Moore asserts that the ALJ erred in determining that David Wolfe, M.D.’s

opinion on a check-box questionnaire about fibromyalgia would be given little weight.

Specifically, Moore contends that the ALJ’s reasoning—that Wolfe’s opinion was

inconsistent with the objective evidence—was not appropriate because Moore has

fibromyalgia, which does not always present objectively measurable symptoms.

The relevant regulation “promises that the ALJ will always give good reasons in his

decision for the weight he gives [the claimant’s] treating source’s medical opinion.”

5 Brown v. Comm’r Soc. Sec. Admin., 873 F.3d 251, 256 (4th Cir. 2017) (brackets and

internal quotation marks omitted). “While the diagnoses of . . . fibromyalgia may not lend

[itself] to objective clinical findings, the physical limitations imposed by the symptoms of

such illnesses do lend themselves to objective analysis.” Boardman v. Prudential Ins. Co.

of Am., 337 F.3d 9, 16 n.5 (1st Cir. 2003).

Here, Wolfe determined that Moore suffered from “fibromyalgia superimposed on

cervical, thoracic, and lumbar spondylosis/disk disease.” (J.A 1675). This diagnosis was

arrived at after testing to see if Moore’s pain was based on fibromyalgia “exclusively.”

(J.A. 1681). Further, on the questionnaire at issue, Wolfe noted that Moore was diagnosed

with both fibromyalgia and lumbar radiculopathy.

Wolfe’s treatment notes show an objective physical condition intensified by

fibromyalgia. Thus, the objective evidence in the record regarding Moore’s normal motor

strength, coordination, and gait was clearly relevant to a determination of what weight to

give Wolfe’s opinion. Notably, the ALJ did not reject Wolfe’s opinion but simply found

that Moore’s limitations were not as severe as Wolfe opined given that the other evidence

in the record supported the conclusions that Wolfe’s neck and back issues would not limit

Moore from light work. Further, the ALJ’s consideration of Wolfe’s fibromyalgia

diagnosis was made after a discussion of other treating and non-treating doctors’

conclusions that Wolfe’s fibromyalgia did not prevent her from sustaining light work. As

such, the ALJ’s reasoning for giving certain of Wolfe’s opinions little weight was

appropriate.

6 III.

Finally, Moore challenges the ALJ’s treatment of Chester Day, M.D.’s medical

opinion. The Commissioner contends that Moore has waived this challenge due to her

failure to object to the ALJ’s findings on this issue in her objections to the magistrate

judge’s report. Failure to file specific, written objections to a magistrate judge’s report and

recommendation constitutes a waiver of a party’s right to further judicial review, including

appellate review, if the recommendation is accepted by the district court. United States v.

Schronce, 727 F.2d 91, 94 (4th Cir. 1984). Failure to object to a specific issue waives the

right to appeal the court’s ruling on that issue. See Praylow v. Martin, 761 F.2d 179, 180

n.1 (4th Cir. 1985) (failure to object to magistrate judge’s factual finding waived appeal of

that finding); accord Crum v. Sullivan, 921 F.2d 642, 645 (6th Cir. 1990) (holding that

failure to object to one issue in a report precludes raising that issue, even if objections filed

on other issues); Keating v. Sec’y of Health & Human Servs., 848 F.2d 271, 275 (1st Cir.

1988) (court can assume that litigant acquiesces in portions of magistrate judge’s report to

which he does not object).

Moore asserts that she properly objected to the magistrate judge’s conclusion that

the ALJ’s analysis of Day’s medical opinion was appropriate. In her objections, Moore’s

second issue was titled: “THE ALJ FAILED TO PROVIDE GOOD REASONS FOR

ACCORDING LESS THAN CONTROLLING WEIGHT TO MS. MOORE’S

TREATING DOCTORS.” Although Moore never mentioned Day at any point in her

objections, she asserts that this issue’s language was broad enough to include her claim

regarding Day.

7 Moore’s assertion is without merit. Moore did not direct the district court to any

errors in the magistrate judge’s report regarding Day, and thus, her objection was general

at best. As such, Moore has waived appellate review of this claim.

Accordingly, we affirm. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before this court and argument

would not aid the decisional process.

AFFIRMED