Jesse Bishop v. Commissioner of Social SecurityJesse Bishop v. Commissioner of Social Security
Johnson also challenges his 240-month sentence, arguing that the district court did not adequately explain its reasons for imposing a sentence substantially above the applicable Guidelines range. We review a sentence for reasonableness, applying “an abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). This court must first review for “significant procedural error[s],” including, among other things, improperly calculating the Guidelines range. Id. Only if we find a sentence procedurally reasonable may we consider its substantive reasonableness. Id. Regardless of whether a district court varies or departs, this court reviews the substantive reasonableness of an above-Guidelines sentence with regard to “whether the District Judge abused his discretion in determining that the
Johnson does not challenge the procedural reasonableness of his sentence. Rather, he argues that his sentence was 250% above the top of the Guidelines range and, therefore, required more explanation from the district court in order to sustain the extent of the variance. We find that the district court clearly and adequately explained its reasoning for the higher sentence. The court identified the relevant
Accordingly, we affirm Johnson‘s conviction and sentence. We deny Johnson‘s motion to file a pro se supplemental brief and 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.
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.
Before MOTZ, KING, and KEENAN, Circuit Judges.
Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jesse Arthur Bishop appeals from the
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, (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 (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, 63 S.Ct. 454, 87 L.Ed. 626 (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 Bjornson v. Astrue, 671 F.3d 640 (7th Cir.2012). In that
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 Eldeco, 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 841, 845-46 (4th Cir. 1985); see also Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 88 L.Ed.2d 435 (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.