MICHAEL F. URBANSKI, District Judge.
This supplemental security income ("SSI") appeal is before the court for review of the Report and Recommendation issued in this case by the magistrate judge, in which it is recommended that this matter be remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further consideration. The plaintiff, Melissa E. Vest ("Vest"), has filed an objection to the Report and Recommendation pursuant to Federal Rule of Civil Procedure 72(b). For the reasons set forth below, the court overrules Vest's objections and adopts the magistrate judge's recommendation that this case be remanded to the Commissioner.
Vest filed an application for SSI benefits in 2007. (R. 159.) That application was denied initially, denied once again on reconsideration, and denied again by an Administrative Law Judge ("ALJ") decision following a hearing in 2009. (R. 158-59.) After receiving the ALJ's decision, Vest requested review by the Appeals Council and submitted new medical evidence relevant to her claim. (R. 175.) The Appeals Council granted Vest's request and remanded the case to the ALJ for a new hearing. (R. 175-76.) The ALJ held another hearing in 2012 and, once again, denied Vest's application for SSI. (R. 10.) Vest sought review of the ALJ's 2012 decision by the Appeals Council, the Appeals Council denied that request for review, and this appeal followed. (R. 1); Complaint, Dkt. No. 3, at 1.
This matter was referred to the Honorable Joel C. Hoppe, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1)(B), for proposed findings of fact and a recommended disposition. The parties filed cross motions for summary judgment and supporting memoranda, and the magistrate judge filed a Report and Recommendation on July 17, 2014. The magistrate judge found that the ALJ erred in finding Vest's mental impairments nonsevere (step 2) and in failing to consider Vest's fibromyalgia in determining whether her impairments met or equaled a listing (step 3). The report recommends that Vest's motion for summary judgment be granted, Vest's supplemental motion for summary judgment be denied as moot, the Commissioner's motion for summary judgment be denied, and this case be remanded to the Commissioner for further proceedings. Vest filed objections to the Report and Recommendation, but the Commissioner did not.
Although the magistrate judge recommends that the Commissioner's decision be reversed and the case remanded, Vest asserts a number of objections to the Report and Recommendation. Not surprisingly, Vest does not object to the magistrate judge's findings of error in the ALJ's decision. Despite the magistrate judge's recommendation to remand the case without objection by the Commissioner, the court has made a
In conclusory fashion, Vest first objects to the magistrate judge's overall findings and conclusions regarding her residual functional capacity ("RFC") assessment. Pl.'s Obj., Dkt. No. 23, at 1. If 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,'"
Along with her general objection to the findings and conclusions regarding the RFC assessment, Vest makes a number of specific objections to the magistrate judge's findings and conclusions concerning the ALJ's determination of her RFC. In particular, she objects to a number of findings regarding her credibility and the ALJ's rejection of her treating physician's opinions. The court will consider each of these specific objections.
Vest objects to (1) the ALJ's application of the pain standard; (2) the ALJ's finding of a conservative treatment plan for her pain; (3) the ALJ's finding regarding her activity level; (4) the ALJ's finding regarding drug seeking behavior; and (5) the ALJ's findings regarding her inconsistent statements. Pl.'s Obj., Dkt. No. 23, at 2-4. The combined effect of those findings convinced the ALJ that Vest was not credible. (R. 37.)
The court finds no reason to disturb the ALJ's credibility determination in this case. Credibility determinations are "emphatically the province of the ALJ, not the court, and courts normally should not interfere with these determinations."
In his assessment of the severity of Vest's pain, the ALJ noted the lack of objective evidence such as tests or images to support Vest's "expression of subjective pain" and to diagnose fibromyalgia. (R. 26 n.10, 37.) As a result, he properly considered the other evidence in the record including her other impairments, daily activities, and treatment. (R. 37.) It was reasonable for the ALJ to characterize Vest's treatment as conservative. (
While it is highly unlikely that any one of these factors alone would be dispositive as to Vest's lack of credibility, the ALJ's consideration of all of these factors together, all of which are adequately supported in the record, to discount her testimony was not error. Therefore, the court denies Vest's objections 2, 3, 4, 5, and 6 to the Report and Recommendation.
Vest also objects to the ALJ's rejection of the opinion testimony of Dr. Hogenmiller, her treating rheumatologist, in determining her RFC. Pl.'s Obj., Dkt. No. 23 at 4-5. Generally a treating physician's testimony deserves greater weight, but it does not necessarily deserve controlling weight.
The court finds no reason to disturb the ALJ's decision to reject Vest's treating physician's opinion. Here, Vest readily admits in her objection that "Fibromyalgia cannot be confirmed through objective testing," and the ALJ noted that there is no objective means for diagnosing fibromyalgia. Pl.'s Obj., Dkt. No. 23 at 5; (R. 26 n.10.) That lack of "medically acceptable clinical and laboratory diagnostic techniques" to support the treating physician's testimony is a factor bearing on the ALJ's discretion as to the weight to give that testimony.
Finally, the ALJ noted that the majority of Vest's treating physician's assessments were based on Vest's "reported symptoms and limitations. . . ." (R. 38.) As already stated, the ALJ determined Vest's testimony about her symptoms was not credible for several reasons. Because there was a lack of objective clinical evidence to support the treating physician's assessment, the subjective evidence supporting the assessment was based on Vest's less than credible statements, and substantial contradictory evidence exists in the record, it was within the ALJ's discretion to reject Vest's treating physician's opinion.
In sum, the court agrees with the magistrate judge's recommendation that the ALJ erred in finding Vest's mental impairments nonsevere and failing to consider whether Vest's fibromyalgia met or equaled a listed impairment. After a
For these reasons, the magistrate judge's Report and Recommendation will be
An appropriate order will be entered this day.