MICHAEL F. URBANSKI, District Judge.
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 July 30, 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 and this matter is now ripe for the court's consideration.
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.
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,'"
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.
539 F. Supp. 2d at 846. A plaintiff who reiterates his previously-raised arguments will not be given "the second bite at the apple []he seeks;" instead, his re-filed brief will be treated as a general objection, which has the same effect as would a failure to object.
In his objections to the report and recommendation, Quesenberry takes issue with the following findings of the magistrate judge: (1) that the Administrative Law Judge (ALJ) did not err in failing to give greater weight to the opinion of Dr. Wilder, specifically with respect to Quesenberry's ability to bend or twist; (2) that the vocational expert's testimony does not constitute reversible error; and (3) that the record evidence supports the ALJ's credibility determination. The court has conducted a
The issue here is largely one of credibility. Quesenberry states that he suffers from what are referred to in the record as "near-syncopal" episodes, which he describes as follows:
(Administrative Record, hereinafter "R." 52.) Quesenberry claims to experience these episodes daily (R. 39), anywhere from four to five times per day (R. 54), and states that it takes him "generally a couple hours" to recover, get his energy back and "feel normal again" (R. 52). He states he never loses consciousness. (R. 55, 366.) The record reflects that Quesenberry reported having had these spells as far back as 1998 and has sought treatment for this condition from his primary care provider, a cardiologist, and a neurologist during the relevant period. He has also been referred to Duke University Medical Center where he received an evaluation. None of these providers have been able to ascertain what is causing these episodes and how to prevent them.
Notes from Quesenberry's May 2008 neurological evaluation with Dr. Lisa D. Hobson-Webb at Duke state Quesenberry has:
(R. 277-78.) Nevertheless, in spite of these symptoms, Quesenberry managed to work as an assistant manager at a tool and equipment retailer, where he was required to lift and carry various products that weighed up to 100 pounds (R. 176-77), until July 13, 2009, when he states "it was just getting to the point where with everything hitting me, it was just getting impossible for me to do my job." (R. 46.)
Based on this and Quesenberry's other impairments, the ALJ limited Quesenberry to a range of low-stress, sedentary work. (R. 19.) In fashioning this RFC assessment, the ALJ gave great weight to the opinion set forth by Quesenberry's treating cardiologist, Dr. Wilder, in a Cardiac Residual Functional Capacity Questionnaire dated March 10, 2010.
With respect to this deviation from Dr. Wilder's opinion, the ALJ stated:
(R. 24.) The magistrate judge held that the ALJ's finding in this regard is supported by substantial evidence, stating:
Report & Recommendation, Dkt. # 23, at 10. Quesenberry objects to the magistrate judge's characterization of Dr. Nack's opinion in this regard, arguing that "Dr. Nack's [notes] indicate more than just a straight forward opinion that plaintiff's episodes only occur with changing head positions." Pl.'s Objection, Dkt. # 24, at 2. Quesenberry points to Dr. Nack's statement that "[w]hen [plaintiff] goes to stand after bending over, he feels as if his symptomatology is worse and following the episodes, `It drains me of energy.'"
To be sure, Dr. Nack stated that Quesenberry feels his symptoms are worse after bending over, but he did so in the context of reciting Quesenberry's subjective complaints. (R. 366.) Later he notes:
(R. 367.) Dr. Nack went on to state:
(R. 368.) Thus, Dr. Nack clearly remarked that Quesenberry's reported symptoms manifest not only upon bending over but also with mere flexion of the head. Indeed, this is precisely how both Quesenberry and his counsel described his symptoms at the administrative hearing. (
To give full credence to Quesenberry's complaints of near-syncopal episodes then would require a finding that Quesenberry could never bend or twist or flex his head. And as the magistrate judge noted, "the rather robust range of daily activities that Quesenberry remains capable of performing," belies any such limitation.
For instance, Quesenberry testified that he makes wood crafts for his family at a workshop, but said he sets his work bench up so that he does not have to look down when doing so. (R. 53-54). He is able to drive, although he claims he does not drive as much as he once did. (R. 55.) Quesenberry indicated he has no problem with personal care (R. 195), helps wife with his children (R. 195), and is able to prepare meals (R. 196). With respect to household chores, Quesenberry stated: "A lot of things I can do. It just may take longer to do them." (R. 196). He can go out alone (R. 197), shop (R. 197), and socialize several times per week (R. 198). His interests include watching sports on TV and in person, woodworking, and spending time with his kids. (R. 198.) Quesenberry indicated on his function report that he does these things "[e]veryday and usually w/little problems" (R. 198), although he testified at the administrative hearing that his symptoms had been interfering with his activity level more frequently. (R. 57-58.)
Substantial evidence supports the ALJ's conclusion that "[t]he record [ ] does not support a limitation of absolutely no bending or twisting, but it is reasonable to find the claimant can less than occasionally bend or twist." (R. 24.) The court notes that the ALJ gave great weight to the opinion of Quesenberry's treating cardiologist, Dr. Wilder, in all respects other than Quesenberry's ability to bend and twist, finding Dr. Wilder's opinion to be consistent with the treatment notes and objective findings in the record. The ALJ also found Quesenberry's subjective complaints to be generally credible, except to the extent they are inconsistent with his residual functional capacity assessment. (R. 23.) To that end, he declined to find Quesenberry could never bend or twist but nevertheless limited him to bending and twisting only "less than occasionally."
A different factfinder may have reached another conclusion in this case. However, the court's role on judicial review is limited to determining whether this factfinder's conclusion is supported by substantial evidence.
Finally, Quesenberry objects to the magistrate judge's finding that the vocational expert's testimony did not constitute reversible error. At the administrative hearing, the vocational expert testified in response to the ALJ's hypothetical that Quesenberry could perform work as a receptionist, a dispatcher, and an information clerk, all of which the vocational expert identified as sedentary in exertion and "entry level" positions. (R. 63.) Quesenberry argued on summary judgment that these jobs are not, in fact, entry level, but are classified as semi-skilled jobs according to the Dictionary of Occupational Titles (DOT). Quesenberry asserted that in violation of Social Security Ruling 00-4p, the ALJ failed to ask the vocational expert if his testimony conflicted with the DOT and explain his resolution of any conflict. The magistrate judge determined that remand on these grounds was not warranted, however, because the ALJ did not limit Quesenberry to unskilled or entry-level work, and thus identification of the skill level was not essential to the ALJ's analysis. The magistrate judge held:
Report & Recommendation, Dkt. # 23, at 13. The magistrate judge noted that Quesenberry has a high school education (R. 24) and thus is generally considered to be able to perform semi-skilled through skilled work. 20 C.F.R. § 404.1564(b)(4). Indeed, Quesenberry's past work consisted of semi-skilled and skilled work, and the ALJ found that he could not perform this past work because of the exertional requirements of the jobs, not because of skill level. Report & Recommendation, Dkt. # 23, at 14. Moreover, Quesenberry did not put forth any evidence to suggest that he was incapable of performing semi-skilled or skilled work. Thus, the magistrate judge concluded that remand was not necessary, because there was no meaningful conflict between the vocational expert's testimony and the DOT that required reconciliation under SSR 00-4p.
In his objection, Quesenberry argues:
Pl.'s Objections, Dkt. # 24, at 3. The court does not agree that the ALJ "clearly limited plaintiff to unskilled work." The regulations define "unskilled work" as:
20 C.F.R. § 404.1568(a). Nothing in the ALJ's residual functional capacity determination suggests that Quesenberry is limited to unskilled work.
The court has reviewed the magistrate judge's report, the objections to the report, and the administrative record and, in so doing, made a
An appropriate Order will be entered to that effect.
