United States District Court, W.D. North Carolina, Charlotte Division
Cogburn Jr., United States District Judge
MATTER is before the Court on review of a Memorandum
and Recommendation issued in this matter. In the Memorandum
and Recommendation, Magistrate Judge Dennis Howell advised
the parties of the right to file objections within 14 days,
all in accordance with 28 U.S.C. § 636(b)(1)(c).
Objections have been filed within the time allowed.
Federal Magistrates Act of 1979, as amended,
provides that “a district court shall make a de
novo determination of those portions of the report or
specific proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1);
Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983).
However, “when objections to strictly legal issues are
raised and no factual issues are challenged, de novo
review of the record may be dispensed with.”
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982).
Similarly, de novo review is not required by the
statute “when 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.” Id. Moreover, the statute
does not on its face require any review at all of issues that
are not the subject of an objection.
v. Arn, 474 U.S. 140, 149 (1985); Camby v.
Davis, 718 F.2d at 200. Nonetheless, a district judge is
responsible for the final determination and outcome of the
case, and accordingly the Court has conducted a careful
review of the magistrate judge's recommendation.
plaintiff (who is proceeding pro se) makes three
objections to the magistrate judge's recommendation. The
court will review each objection in turn, construing them
liberally out of deference to plaintiff's pro se
Plaintiff's objection over misuse of relevant
plaintiff argues that the ALJ ignored relevant evidence that
ultimately would have changed the ALJ's findings.
Specifically, plaintiff points to an x-ray from April 2007
showing “radiopacity overlying the left femoral neck,
as well as some soft tissue mineralization overlying the
iliopsoas tendon at or adjancent [sic] to its insertion,
heterotopic soft tissue mineralization is seen.” Doc.
#25 at 1. Plaintiff then compares it to a prior exam from
April 2004 where no soft tissue mineralization was seen, and
argues that this demonstrates a worsened condition that is
frequently seen with “musculoskeletal trauma, spinal
cord injury, burns or traumatic brain injury.”
Id. As such, plaintiff argues that this supports
testimony of plaintiff's challenges in not being able to
walk or stand for long, and that the ALJ should have taken
this into account. Further, plaintiff argues that the ALJ
ignored plaintiff's testimony that he had to rest for
around 15 minutes.
the court cannot find that the ALJ committed reversible
error. The ALJ did take plaintiff's testimony about
resting into account, as the ALJ specifically notes that
claimant “can stand fifteen minutes, and then must sit
down for twenty minutes” and that he can walk
“seventeen minutes slowly.” (Tr. 24). As for the
2004 and 2007 tests and evidence, the ALJ “does not
have to specifically refer to every piece of evidence in his
or her decision.” Grubby v. Astrue, 2010 WL
5553677, at *6 (W.D. N.C. Nov. 18, 2010) (citation omitted),
report and recommendation adopted, 2011 WL 52865
(W.D. N.C. Jan. 7, 2011). Further, “the ALJ's
failure to discuss a specific piece of evidence is not an
indication that the evidence was not considered.”
Brewer v. Astrue, 2008 WL 4682185, at *3 (E.D. N.C.
Oct. 21, 2008) (citing decisions from the Third, Seventh,
Eighth, and Eleventh Circuit Courts of Appeal). As the
evidence in question comes from 2004 and 2007 and is of
questionable relevance due to significantly predating the
period at issue, the court finds no issue with the ALJ
failing to cite to it specifically, particularly when it does
not appear to establish an additional severe impairment or
support a limitation in excess of what the ALJ already found.
Therefore, the court finds no basis for reversal on this
Plaintiff's objection to the ALJ's residual
functional capacity finding
the court considers plaintiff's objection to the
ALJ's residual functional capacity (“RFC”)
finding. Plaintiff argues that the ALJ wrongly found that
plaintiff could stand for up to two hours a day, saying that
he can stand for only a total of 30 to 45 minutes per day due
to his impairment and uncomfortable posture. However,
plaintiff does not point to any specific objectionable
activity by the ALJ, and instead relies on his personal
assessment of his capabilities. Plaintiff also relies on a
case from the Ninth Circuit Court of Appeals as evidence that
his impairment is permanent and that the ALJ failed to
provide a proper reason for discrediting plaintiff's
testimony. See Garrison v. Colvin, 759 F.3d 995
(9th Cir. 2014).
the court cannot find the ALJ committed error. The ALJ
closely evaluated the medical evidence of record, including
opinions that covered plaintiff's ability to stand and
walk for periods of time. (Tr. 24-26). As described above,
the ALJ did not try to discredit plaintiff's testimony;
indeed, she cited to plaintiff's own testimony as support
for her decision. Specifically, plaintiff himself testified
that he could stand for fifteen minutes at a time, but would
have to sit for twenty minutes before standing again. (Tr.
24-25, 42). Based on such increments, the ALJ's ultimate
finding of only two hours standing or walking over an
eight-hour workday appears to be a conservative estimate, and
plaintiff may have been capable of even more. In any case,
the court cannot find that the ALJ committed any harmful
error in her RFC analysis, as review of the record shows it
is supported by substantial evidence and that the ALJ
properly explained her reasoning. As such, the court finds no
basis for reversal on this issue.
Plaintiff's objection to ...