Case Information
*1 CLERK'G oFFicE U , . s Dlsm coUR'r AT ROANOKE , VA . FILED IN TH E UN ITED STATE S D IST RICT CO U RT FO R TH E W E STERN D ISTRICT O F W RG IN G SEP 1 9 2I9 R OAN OU D IW SION JULI C. cl .. s BY . ; : z. ot D ' YZ'SI . sj PAT RICIA T ., Plaintiff Civil Action N o. 7:18-CV -00137 V.
AN D REW SAU L, Com m issioner of
Social Security, By: M ichael F. U rbansld Clzief United States District Judge
; 3% Ijjjf;p .<L D efendant
M E M O RAN DU M O PIN ION
Tllis social security disability appeal w as referted to the H onorable Robett S. Ballou, United States Magistrateludge, pursuant to 28 U.S.C. j 6369$(1)7), for proposed findings of fact and a recommended disposidon. The magisttate judge ftled a zeport and recommendadon (R&R) on August 27, 2019, recommending that the plaindff's modon for summary judgment
> ' be denied, the Comnnissioner's motion for summary judgment be gtanted, and the Commissioner's final decision be affstmed. Plaindff Patdcia T. rTatricia'') has ftled objecdons to the repozt and tbis m attet is now ripe foz the court's consideradon.
1. Standard of Review of M agistrate Judge Decision
The objecdon tequitement set fotth in Rule 72$) of the Fedetal Rules of Civil Procedurel is designed to fftraing ) the attendon of 170th the distdct cout't and tlae cout't of appeals upon only those issues that remain in clispute aftez the magisttate judge has made 1 kV ithin 14 days after being sezved with a copy of the recomm ended clisposidon , a party m ay serve and flle speciûc wzitten objections to the proposed finclings and recommendadons.'' Fed. R. Civ. P. 72q$.
fnclings and tecommendadons.'' United States v. Midgette, 478 F.3d 616, 621 (4th Cit. 2007) (citing Thomas v. Arn, 474 U.S. 140, 147-48 (1985)). An objecting party must do so ffwith sufficient speci:city so as reasonably to alert the disttict court of the tt'ue g'rolm d for the objecdon.'' Id. at 622.
To conclude otherwise would defeat the ptupose of req'niting objecdons. W e w ould be permitting a party to appeal any issue that was before the m agisttate juie, regardless of the nature and scope of objecdons made to the magistrate
judge's teport. Either the disttict coutt would then have to review every issue in the magistrate judge's proposed Snflings and recommendadons or courts of appeals w ould be required to review issues that the district court nevet considered. In either case, judicial resocces would be wasted and the disttict coutt's effecdveness based on help fzom magistrate judges would be unde= ined.
Id=
The disttict court m ust deternaine . d.q novo any potéon of the magisttate judge's report and recommendadon to which a pzoper objecdon has been made. Kfl'he district court may accept, reject, or modify the recommended disposidon; receive furthet evidence; ot retutn the mattet to the magistrate judge with instzuctions.'? Fed. R. Civ. P. 729$(3)9 accord 28 U.S.C. j 6369$(1).
If, however, a party frfmakes general or conclusory objecdons that do not direct the court to a specihc ertor in the magisttate judge's proposed findings and recommendations,''' X novo review is not requized. Di ros ero v. Colvin, No. 5:13-cv-00088-FDW -DSC, 2014 W L . 1669806, at *1 (W .D.N.C. 2014) (quoting Howard Yellow Cabs, Inc. v. United States, 987 F. Supp. 469, 474 (W .D.N.C. 1997) (quodng Omiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 19821 . ffT'he cplntt will not consider those objecdons by the plaindff that are merely conclusory or attempt to object to the entirety of the Report, without focusing the coun's *3 attention on specific errors thezein.'' Cam er v. Com m 'r of Soc. Sec., N o. 4:08cv69, 2009 V t 9044111, at *2 (E.D. Va. 2009), aff'd, 373 F. App'x 346 (4th Cir.); see M id ettè, 478 F.3d at 621 rfsecéon 636q$(1) does not countenance a form of generalized objection to covet all issues addressed by the magistzate judge; it contemplates that a party's objecdon to a magistrate : judge's repozt be specifk and pazdculatized, as the statute O ects the disttict coutt to zeview
only Gthose Jprzzr.r of the report or jpectyed proposed hndings or recommendaéons to which p/zgkrfpzi is //:tz/1.:7) Such genetal objecdons ffhave the same effect as a failure to object, or as a waiver of such objection.'' Moon v. BW X Technolo 'es, 742 F. Supp. 2d 827, 829 (W.D. Va. 2010), aff'd, 498 F. App'x 268 (4t.h Cir. 2012). See also Atn, 474 U.S. at 154 rfrllhe statazte does not reqllite the judge to review an issue A novo if no objecions are Sled. . . .').
Rehashing arguments raised before the magisttate judge does not comply with the zequirement set forth in the Federal Rules of Civil Ptocedute to flle specific objections. lndeed, objecéons that simply reitetate arguments raised before the magistrate judge are considered to be general objecdons to the entirety of the report and recommendadon. See Vene v. Asttaze, 539 F. Supp. 2d 841, 844-45 (W .D. Va. 2008). As the cotut noted in y-e-lm.y:
A llowing a litigant to obtain de novo review of her eptire case by m erely zeformatting an eatlier brief as an objection Tfmaklesj the inidal teference to the m agistrate useless. The funcdons of the disttict court are effecévely duplicatqd as ln0th the m agistrate and the disttict court perfotm idendcal tasks. Tllis duplicadon of time and effort wastes judicial resources rather than saving them, and nms contrary to the purposes of the Magistrates Act'' Howatd (v. Sec'y of Health & H'lman Setvs.l, 932 F.2d (505,) g 509 ((6th Cit. 1991)1.
y-çs-e.y, 539 F. Supp. 2d at 846. A plnitnéff who reiterates her previously-raised atgum ents will not be given frthe second bite at the apple she seeksi'' instead, her re-ftled bdef will be tteated as a general objecdon, which has the same effect as would a faillzre to object. 1d.
II. Judicial Review of Social Security Determinations
It is not the province of a federal coutt to m ake adm itnistradve disability decisions. Rather, judicial review of disability cases is limited to detetvnining whethez substandal evidence supports the Com m issioner's conclusion that the plaintiff failed to m eet llis burden of ptoving disability. See Ha s v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.1990)9 see also Laws v. Celebrezze, 168 F.2d 640, 642 (4th Cit. 1966). In so doing, the court may neithet undertake a . d-q novo teview of the Commissioner's decision not re-weigh the evidence of tecord. Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992). Evidence is substandal when, considedng the record as a whole, it naight be deem ed adequate to support a conclusion by a reasonable mind, Richardson v. Petales, 402 U.S. 389, 401(1971), or when it would be sufhcient to refuse a ditected vetdict in a jury ttial. Smith v. Chater, 99 F.3d 635, 638 (4th Cit. 1996).
Substandal evidence is not a Tflarge or considerable am ount of evidencey'' Pierce v. Underwood, 487 U.S. 552, 565 (1988), but is more than a mere scindlla and somewhat less than a ptepondetance. Perales, 402 U.S. at 4019 Law s, 368 F.2d at 642. fflt m eans- and m eans only- Tsuch relevant evidence as a reasonable mind m ight accept as adequate to support a conclusion.''' Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (quodng Consolidated Edison Uo. v. NLRB, 305 U.S. 197, 229 (1938)). If the Commissioner's decision is supported by substanéal evidence, it must be afftrmed. 42 U.S.C. j 405/)9 Perales, 402 U.S. at 401.
111. Plaintifps Objectionsz
In her objecdons to the R&R, Patticia asserts that the magistrate judge erred when he made the following fmclings: (1) that the Appeals Council was correct in refusing to consider addidonal evidence and (2) that the adnninistrative law judge (T<ATJ, ?') ptoperly evaluated the opinion of Patricia's tteating physician.
A. Additional Evidence at Appeals Council
The AIJ in this case issued a determination on May 5, 2017 in which she found Patdcia not disabled. R. 39-50. Patticia sought review by the Appeals Council. O n N ovem ber 7, 2017 the Appeals Cquncil agreed to review the case after Encling that the ATJ decision was not supported by substandal evidence because the AT,J did not apply the Tfspecial technique': to efaluate the severity of Patdcia's anxiety.3 R. 271. The Appealq Council reviewed the ATJ decision, applied the f<special techniquey': and nodhed Patdcia that it intended to conclude that she had no funcdonal lim itadons related to her anxiety. R. 270-273. 'I'he Appeals Council flat-thez intended to conclude that Patricia had not been tm der a disability since her onset date of June 4, 2012 thtough M ay 5, 2017, the date of the AT,J'S decision. R. 273. The Appeals Council advised Patticia that she could submit a statem ent about the facts and submit m oze eddence within 30 days. The addiéonal evidencl would be considered if it rfgmetq the rtzles we 2 D etailed facts about Patricia's impnitm ents and m edical and procedural laistoc can be found itz the report an d recomm' endadon (ECF No. 18) and itz the aclmitaistradve transcript (ECF Vo. 9) and wtll* not be repeated here.
3 An ATJ is supposed to employ the Rspecial technique'' to evaluate à. clnimant's alleged mental impni% ents.
Under the ffspecial techniquey'' the AIJ ftrst evaluates the perdnent signs, symptoms, and laboratoly Fmrlings to determine whether a clnim ant has a m edically determinable impnirment. If it is determined fhat the ' '' ' ' . . cblmant has a medically determlnable mental implirment, the ATJ then rates the degree of funcdonal
lim itadon restzlting from the impnirm ent itl term s of a clnim ant's lim itadons itz foktt broad categories: understanding, rem em bee g, or applpth g inform adon; irlteracdng with others; concentrating, persisdng, or maintnining pace and adapting and managm' g oneself. 20 C.F.R. 404.1520a and 20 C.F.R. 416.920(a).
applied above.'' R. 270, 273. The rtzles refezred to by the Appeals Council are the sam e as those set out in 20 C.F.R. jj 404.970(a) and 416.1470(a) (2017).
O n D ecem ber 22, 2017 Patticia sent a m em orandum to the Appeals Council atguing that the ATJ erred when she accepted vocadonal evidence ftom the vocadonal expert without reqlliting the expett to pzovide adctidonal evidence from the D icdonary of OccupationalTitles. She asked that the AT,J's decision be vacated and that her case be remanded for a new heating. R. 408.
On February 22, 2018 the Appeals Council adopted the fmdings of the AT,J and issued a decision that Patticia was not disabled. The Appeals Council noted that Patdcia had submitled addidonal evidence from Blue Ridge Pain M anagement Associates (<%lue ludge''l. Part of the records were 22 pages dated from February 18, 2016 thröugh January 26, 2017. The Appeals Council found that the addiéonal evidence did not show a reasonable probability that it wotzld change the outcom e of the decision and thus it did not consider and exllibit the evidence. The second part of the recotds w as 18 pages dated M ay 11, 2017 O ough N ovem ber 8, 2017. Because the AT,J issued her decision on M ay 2, 2017, the Appeals Council folm d that the records did not relate to flze peliod at issue.
Patticia argued to the magisttate judge that the Appeals Council failed to propetly evaluate the records ftom Blue Itidge. She asserted that w hen the Appeals Colm cil grants a request for review and issues its own decision, it bases its decision on tlae prepondetance of tlae evidence. 20 C.F.R. j 404.979. Also, under those circumstances, the Appeals Council's decision is the hnal decision of the Commissioner subject to review in district colzrt. Sims v. Ap-fkl, 530 U.S. 103, 106-107 (2000). Patticia assezted that the Appeals Council erroneously *7 applied the new and m atedal evidence standard to the Blue ltidge records to exclude the records. She asserted that the standard of whether the evidence shows a reasonable probability that it would change the outcom e of a decision applies in detetnaining whether to grant Appeals Council review, rather than after a request for review has been granted. Patdcia argued that becaude the Appeals Council granted the tequest for review, it was oblkated to considez the new evidence.
The magstrate judge founk that the Appeals council cozrectly informed Patdcia that even though it was granting review because substandal evidence did not support the AT,J'S decision, that it would only consider any addidonal evidence she submitted if it m et the standard set forth in 20 C.F.R. jj 404.970, 416.1470(a). 'Fhe magisttate judge further concluded that the Appeals Council properly evaluated and declined to considet the evidencç under the reguladons.
In her objecdons, Patticia reiterates hez argument that once the Appeals Council agteed to review her case, it w as obligated to consider the addiéonal evidence. The Com m issioner counters that the Appeals Council only needed to consider the evidence if it w as new , telated to the tim e period on ot before the hentbng decision, and there is a reasonable probability that the addidonal outcom e would change the outcom e of the decision.
The colxtt hnds that the magistrate judge's analysis is correct. Prior tolanuary 16, 2017, the reguladons provided the following:
(a) The Appeals Council will review a case if-
(1) There appears to be an abuse of disczedon by the administtaive 1aw judge; (2) There is an error of law;
(3) The acéon, fmclings, or conclusions of the admirlisttative law judge ate not supported by substandal evidence; or
(4) Thete is a bzoad policy ot procedutal issues that may affect the getleral public interest.
(b) If new and material evidence is submitted, the Appeals Council shall consider the adclidonal evidence only where it relates to the period on or befote the date of the admirlisttadve law judge heating decision. The Appeals Council shall evaluate the entire record including the new and m aterial evidence submitted if it relates to the period on or before the date of the EATJ!, henting decision. lt will then review the case if it finds that the (AI,J's) acdon, hndings, or conclusion is conttary to the weight of the evidence currently of zecord.
20 C.F.R. jj 404.970, 416.1470 (1987).
The regulaéons in effect since January 16, 2017 contain new language * t.1,1 respect to the subm ission of ne . w evidence. They provide the following:
(a) The Appeals Council will review a case if-
(1) There appears to àe an abuse of cliscredon by the adnunisttative law jutke; (2) Theze is an error of law;
(3) The acéon, findings, or conclusions of the administtaéve 1aw judge are not supported by substandal evidence;
(4) Thete is a broad policy or procedutal issues that may affect the generalpublic interest; oz
(5) Subject to patagraph (b) of this secdon, the Appeals Council receives additional evidence that is new, m atezial, and relates to the period on ot befote the date of the headng decision, and there is a reasonable probability that the addidonal evidence would change the outcom e of the decision.
20 C.F.R. jj 404.970(a), 416.1470(a).
Paragraph $) provides that the Appeals Council will only consider addidonal evidence lmder paragraph (a)(5) of the reguladon if a clnimant shows good cause for not informing the ATJ about the evidence oz submitting the evidence at least five days before the ATJ heating *9 and lists several exam ples of ci.tcp:m stances m aking it impossible to subm it the evidence. 20 C.F.R. jj 404.9709$(1)-(3), 416.1470q$(1)-(3), 404.935($. One of the circumstances that consdtutes good cause is if a clnim ant teceived a hearing level decision on the record and the Appeals Cotmcil reviewed the decision. 20 C.F.R. jj 404.970$)(3)(v), 416.1470$)(3)(v).
Paragraph (c) provides the following:
If you submit addidonal evidence that does not relate to the period on or before the date of the administtative 1aw judge heating decision as required in patagraph (a)(5) of this section, or the Appeals Council does not fttzd you had good cause for missing the deadline to subtnit the evidence in j 404.935, the Appeals Council will send you a notice that explains why it did not accept the additional evidence and advises you of your right to flle a new applicadon.
20 C.F.R. jj 404.970(c), 416.1470(c).
The patdes agree that the new regulation m akes the teceipt of addidonal evidence that m eets the new criteria an addidonal ground on which the A ppeals Cotm cil witl review a decision. See also Co e v. Ber hill, No. 4:17-cw=02806-TER, 2019 WL 642914, *3-4 O .S.C. 2019) (noting that undet the new rules, the Appeals Council will review a case for a nllmber of reasons, including receiving addidonal evidence that meets the new ctiteria). The pnt-ries also agree that tlae new reguladon adds two requitem ents to the clnim ant's burden to have new evidence considered for the flrst tim e by the Appeals Council when it is granéng review based on new evidence: (1) the clnimant must demonstrate good cause fot the faillzre to subtnit the evidence in quesdon at least :ve days priot to the AT,J'S decision and (2) the clnimant must show a reasonable pzobability of a different outcom e. See also H awks v. Berryhill, N o. 1:17CV1020, 2018 W L 6728037, *4 (M.D.N.C. 2018) (hnding new teguladons add two new requirements).
The parties disagree about whethet the Appeals Council is oblkated to consider addidonal evidence if it grants review for one of the other four reasons. The magistrate judge found that paragraph (c) seems to discuss the Appeals Council's consideraéon of addidonal evidence in any citcumstance, and not just in the context of when it is deciding whether to zeview a case. Patzicia points out that theze is no expzess insttucdon in the new zeguladon addressing the Appezs Colm cil's duty to evaluate evidence once review is granted on one of the other fout grounds. She further argues that because the Appeals Council issued its own decision, it was bound to base its decision on a prepondetance of the evidence, which oblkated it to consider the addiéonal evidence, citing in support 20 C.F.R. jj 404.979, 416.1479.
H ow ever, the reglzlaéons do not offer the support cbim ed by Patdcia. Rather, they State Z êelevant Part as follow s:
After it has reviewed all the evidence in the administradve 1aw judge hearing record and any additional evidence received, subject to the limitadons on Appeals Council consideration of addidonal evidence in j 404.970, the Appeals Couhcil will make a decision or remand the case to an aclministtadve law judge. The A ppeals Council m ay af6t'm, m odify, or revetse the administradve 1aw ' udge henting decision ot it may adopt, modify or teject a recommended ) decision. If the A ppeals Coun' cil issues its own decision, it will base its decision on a preponderance of the evidence.
20 C.F.R. jj 404.979, 416.1479 (emphasis added). Thus, rather than requite the Appeals Council to zeview a1l the evidence ùn the record, the reguladon appears to support the magistrate judge's conclusion that addidonal evidence is subject to the new cdteria found in jj 404.970 and 416.1470 even after it has decided to review the case.
Further suppott fot the magistrate judge's conclusion is found in the Social Seclltity Heatings, Appeals and Litkaéon Law Manual (TTT-TAT,LEX'), j 1-3-3-6A (May 1, 2017).4 The m anual notes that when the Appeals Council acts on a request for review , it usually considers only the evidence that was before the AIJ, but if a cbimant submits adclidonal evidence in associaéon with a tequest fot teview, the Appeals Council m ust detetm ine if the clnim ant meets one of the good cause excepéons set forth irl 20 C.F.R. j 404.970$). FIAI,LEX, j 1-3- 3-6A.
Based on the fozegoing, the court finds no error in the magisttate judge's conclusion that the Appeals Colm cil is only obligated to consider addidonal evidence if it sadsfies the new cdteria set out in 20 C.F.R.jj 404.970(a)(5) and 416.1470(a)(5). In her objecdons to the magistrate judge's R&R, Patdcia did not addtess whether the evidence was new, material, telated to the period on ot before the date of the headng, or showed a reasonable probability of a different outcome. Therefore, het objecdon to the R&R on the issue of inclusion of new evidence is OVE RRU LED .
B . Evaluation of Treating Physician's O pinion
In general, an ATJ must accord moze weight to the medical opinion of an exsmining soutce than to that of a nonexamining soutce. Testam ark v. Ber 11111, 736 F. A pp'x 395, 387 (4th Cir. 2018) (cidng 20 C.F.R. jj 404.1527(c)(1), 416.927(c)(1) and Brown v. Comm'r of Soc. Sec. Aclmin., 873 F.3d 251, 268 (4th Cir. 2017)). Treating sources are likely to be the medical professionals m ost able to provide a detailçd, longittzdinal pictare of the clsim ant's m edical 4 Available at htmsi//- .ssa.gov/op-Home/haEex/l-o3/l-3-3-6.html (last viewed September 13, 2019).
W hile H ATJEX does not have the force of law, couzts look to it for guidance. See Taylot v. Berrylaill, N o. 1:16>0044., 2018 WL 1003755, *17 (W.D. Va. 2018)9 Wa v. Asttue, 789 F.Supp.2d 652 O .S.C. 2011). *12 impqit'ments. 1d. (citing W oods v. Ber hill, 888 F.3d 686, 695 (2018)). ffrllhe ATJ is reqllited to give controlling w eight to opinions proffered by a clnim ant's tteating physician so long as the opinion is well supported by m edically acceptable clinical and laboratory diagnosdc techniques and is not inconsistent with the other substanéal evidence in the clnim ant's case tecord.'' Lewis v. Ber h1'll, 858 F.3d 858, 867 (4t.h Cir. 2017) (alteradons and inteznal quotadons omittedl.s If an ATJ does not give controlling weight to the opinion of a treae g sotuce, the ATJ must consider a non-exclusive list of factors to detetnaine the weight to be given all the medical opinions of recozd, including (1) exarnining zeladonship; (2) trea% ent relationship; (3) supportability of the solzrce's opinion; (4) consistency of the opinion with the record; and (5) specializaion of the source. Testlmark, 736 F. App'x at 398.
The AT,J ga/e little weight to two physical capacity evaluation quésdonnaires completed by one of Patdcia's treating physicians, D r. M arie L. M alinchak. In a quesdonnaire com pleted in Septem ber 2014, D r. M alinchak opined that Patticia w as unable to sit, stand, wm , or lift anything. R. 47, 475-4789 642-645. Dr. M alinchak also stated that Patricia needed to be conénuously up and m oving because of pain, but after three or four hours she w ould need to lie down because of pain. A ftez twenty m inutes of walldng or thitty m inutes of sitdng ot standing she w ould have pain. R. 475.
ln M atch 2017, D z. M alinchak com pleted another quesdonnaire in w hich she stated that Patricia had lower back pain and that the m edicadon she took for pain caused dtowsiness 5 The Social Secut'ity Adm inistradon has om ended tlle tteating source rule effective Mbrch 27, 2017, for cases ftled after that date. Under the new rule, the SSA will consider the persuasiveness of all m edical opinions and evaluate them ptimneily on the basis of supportability and consistency. 20 C.F.R. j 404.1520c(a), (c)(1)-(2).
Because this case was ftled before the effective date of the change, the decision is reviewed under the reguladon in effect at that time, 20 C.F.R. j 404.1527.
and fatigue. She stated that Patticia wotlld be unable to do even a 1ow stress job because of her severe pain and that she could sit or stand for zero nainutes before neeling to m ove and could never lift any weight. She could w alk less than a city block. In tesponse to a quesdon about how often Patticia w ould need an unscheduled break, D r. M alinchak answered ffunable to w ozk.'' R. 808-812.
The ATJ gave little weight to the questionnaires because Dr. M alinchak's opinion that Patdcia cotzld do no work was not supported by objecdve findings or the results of diagnosdc studies. A ftet het fttst back sutgety, Patticia tepotted that it w as a success. H et pain retutned som e m onths later, but othet than pain and tenderness, the exanaination fm dings, inclucling m otor, sensory, and gait Sndings, were essentially nov al. R. 514-515, 522, 535. In M arch 2015, increased objective fmdings were noted, which would limit Patricia with regard to pushing and pulling with the lower extrem iées, and to four hours of standing and walking with a sit/stand option. The ATJ further noted that at a follow-up appointment in November 2015 Patzicia had norm al finclings on exam , R. 770, and D r. M alinchak's records from 2016 had no fm clings of gait, m otor, oz sensory deicits.
The magistrate judge found tlaat that AT,J discussed all of the zecords from Patricia's visits to D r. M alinchak along wit.h M RI fm clings, before concluding that the evidence in the recotd did not support Patticia's aEeged level of incapacity and that the objecdve funcdonal Iim itations on exarnination were not so signilk ant as to rendet her disabled. In addidon, the ATJ found .that Patdcia is essenéally indepçndent in her daily acdvities, can walk perform fine and gross m otor m ovem ents, tends to her petsonal care albeit with clifûculty, prepazes easy m eals and helps with household chores, dtives, goes out alone, helps her father at tlae grocery *14 store and handles snances. The ATJ then discussed Dr. M alinchak's physical capacity evaluadons in the context of the objecdve evidence of tecotd and Patticia's descripdons of her daily acdvides and found that the evidence did not suppon the linnitadons im posed by D r. Malinchak. Thus, the AT,J concluded that substanéal evidence supported the AT,J'S dedsion to give D r. M alinchak's physical capacity assessm ents little weight.
Patdcia objects that substantial evidence does not support the AT,J's decision because a majority of the physical examinations performed since 2011 have noted abnormal fmdings related to tendezness, reduced range of m otion, and muscle spasm s, T<L/S extension deEciencies m odetate,'' and posidve straight 1eg raises. Patdcia also points out that the diagnosdc sm dies and exam inaéons were severe enough to warrant lum bar decom pression sutgery in 2015. Patdcia further argues that the conclusion that hez daily acdviées ate inconsistent with D r. M alinchak's conclusion that she is unable to stand at all, lift anything at a11, or even turn het head at all is nnistaken, because D r. M alinchak's conclusions were based on Patricia's lim itaéons in a com peddve work sittzadon. She asserts that the ability to petform acdvides in a com petitive w ork situadon would be different than the ability to perform them in a noncom peddve situadon.
In essence, Patdcia is asldng the court to re-weigh the evidence presented to the ATJ, w lzich the court is not at liberty to do. The record does contain evidence that Patdcia suffers from pain and has lim itadons in her ability to sit, stand, and w alk. H owever, the only issue before the cotut is whether substandal evidence supports the AT,J's decision to give little weight to Dt. M alinchak's physical capacity assessment. The court Snds that it does; the ATJ cited to Dr. Malinchak's notes of her exanainations and the other objecdve evidence in the *15 record that conflicts with D r. M alinchak's assessm ent. The evidence w as such that a reasonable m ind m ight accept it as adequate to support the conclusion that D r. M alinchak's opinion w as not suppotted by objecdve evidence in the record and thus entitled to little weight. Accordingly, Patticia's objection to the fmcling by the magistrate judge that the AIJ, erred in her assessm ent of Dr. M alinchak's opinion is OVE RRU LED .
CON CLU SION For the reasons stated, the court fmds no errot in the magisttate judge's conclusion that the AT,J'S decision is suppotted by substantial evidence. As such, the magistrate judge's report and recom m endadon wi.ll be adopted in its entirety.
An appropriate Otder will be entered. '
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