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Hayslett v. Colvin

United States District Court, W.D. Virginia, Roanoke Division

March 30, 2016

CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.


Michael F. Urbanski, United States 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 February 12, 2016, recommending that plaintiff Debbie S. Hayslett's motion for summary judgment be denied, the Commissioner's motion for summary judgment be granted, and the Commissioner's final decision be affirmed. Hayslett filed objections to the report and this matter is now ripe for the court's consideration.


It is not the province of a federal court to make administrative disability decisions. Rather, judicial review of disability cases is limited to determining whether substantial evidence supports the Commissioner's conclusion that the plaintiff failed to meet her burden of proving disability. See Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); see also Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). "The Commissioner's factual findings must be upheld if they are supported by substantial evidence and were reached through application of the correct legal standard." Casillas v. Astrue, No. 3:09-CV-00076, 2011 WL 450426, at *3 (W.D. Va. Feb. 3, 2011). Evidence is substantial when, considering the record as a whole, it might be deemed adequate to support a conclusion by a reasonable mind, Richardson v. Perales. 402 U.S. 389, 401 (1971), or when it would be sufficient to refuse a directed verdict in a jury trial. Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996). Substantial evidence is not a "large or considerable amount of evidence, " Pierce v. Underwood, 487 U.S. 552, 565 (1988), but is more than a mere scintilla and somewhat less than a preponderance. Perales, 402 U.S. at 401; Laws. 368 F.2d at 642. If the Commissioner's decision is supported by substantial evidence, it must be affirmed. 42 U.S.C. § 405(g); Perales, 402 U.S. at 401.

Further, when the court refers a plaintiffs social security disability appeal to the magistrate judge for report and recommendation, the parties are bound by the requirements of Rule 72(b) of the Federal Rules of Civil Procedure. Rule 72(b) 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. See also 28 U.S.C. § 636(b)(1). The Fourth Circuit has held that an objecting party must do so "with sufficient specificity so as reasonably to alert the district court of the true ground for the objection." United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007), cert denied. 127 S.Ct. 3032 (2007).

To conclude otherwise would defeat the purpose of requiring objections. We would be permitting a party to appeal any issue that was before the magistrate judge, regardless of the nature and scope of objections made to the magistrate judge's report. Either the district court would then have to review every issue in the magistrate judge's proposed findings and recommendations or courts of appeals would be required to review issues that the district court never considered. In either case, judicial resources would be wasted and the district court's effectiveness based on help from magistrate judges would be undermined.

Id. The district court must determine de novo any portion of the magistrate judge's report and recommendation to which a proper objection has been made. "The district court may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b)(3); accord 28 U.S.C. § 636(b)(1).

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, '" de novo review is not required. Diprospero v. Colvin, No. 5:13-CV-00088, 2014 WL 1669806, at *1 (W.D. N.C. Apr. 28, 2014) (quoting Howard Yellow Cabs. Inc. v. United States, 987 F.Supp. 469, 474 (W.D. N.C. 1997) (quoting Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982))). "The court will not consider those objections by the plaintiff that are merely conclusory or attempt to object to the entirety of the Report, without focusing the court's attention on specific errors therein." Camper v. Comrn'r of Soc Sec, No. 4:08-CV-69, 2009 WL 9044111, at *2 (E.D. Va. May 6, 2009), affd, 373 F.App'x 346 (4th Cir.), cert, denied. 131 S.Ct. 610 (2010); see Midgette, 478 F.3d at 621 ("Section 636(b)(1) does not countenance a form of generalized objection to cover all issues addressed by the magistrate judge; it contemplates that a party's objection to a magistrate judge's report be specific and particularized, as the statute directs the district court to review only 'those portions of the report or specified proposed findings or recommendations to which objection is made.'"). Such general objections "have the same effect as a failure to object, or as a waiver of such objection." Moon v. BWX Technologies, 742 F.Supp.2d 827, 829 (W.D. Va. 2010), affd, 498 F.App'x 268 (4th Cir. 2012); see also Thomas v. Arn, 474 U.S. 140, 154 (1985) ("[T]he statute does not require the judge to review an issue de novo if no objections are filed").

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. See Veney v. Astrue, 539 F.Supp.2d 841, 844-45 (W.D. Va. 2008). As the court noted in Veney:

Allowing a litigant to obtain de novo review of her entire case by merely reformatting an earlier brief as an objection "mak[es] the initial reference to the magistrate useless. The functions of the district court are effectively duplicated as both the magistrate and the district court perform identical tasks. This duplication of time and effort wastes judicial resources rather than saving them, and runs contrary to the purposes of the Magistrates Act." Howard [v. Sec'y of Health & Human Servs.], 932 F.2d [505, ] 0 509 [(6th Cir. 1991)].

539 F.Supp.2d at 846. A plaintiff who reiterates her previously-raised arguments will not be given "the second bite at the apple she seeks;" instead, her re-filed brief will be treated as a general objection, which has the same effect as would a failure to object. Id.


In her objections, Hayslett takes the magistrate judge's report section by section and asserts that each of his conclusions is erroneous. Specifically, Hayslett argues that the magistrate judge erred in finding: (1) that the Administrative Law Judge ("ALJ") properly determined that Hayslett's condition did not meet the requirements of listing 13.05(A)(2); (2) that the ALJ correctly concluded that Hayslett is capable of performing sedentary work; (3) that the ALJ's discussion of Hayslett's mental impairments satisfies the requirements of Social Security Ruling ("SSR") 96-8p and Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015); and (4) that the ALJ's credibility findings are supported by substantial evidence. In large part, these objections identify no specific error in the report, but rather reiterate arguments Hayslett previously raised in her summary judgment brief. Such general objections do not warrant de novo review. Veney, 539 F.Supp.2d at 844-46. To the limited extent Hayslett objects to specific findings in the report, the court has reviewed de novo those portions of the report and, for the reasons set forth herein, overrules her objections.


First, Hayslett targets the listing issue. A "listed impairment" is a medical condition severe enough "to prevent an individual from doing any gainful activity, regardless of his or her age, education, or work experience." 20 C.F.R. § 404.1525(a). "When satisfied, the listings of impairments automatically result in a finding of disability." Casillas v. Astrue, No. 3:09-CV-00076, 2011 WL 450426, at *4 (W.D. Va. Feb. 3, 2011). Importantly, a claimant must show that her alleged impairment meets "all of the specified medical criteria" for a listing. Sullivan v. Zebley, 493 U.S. 521, 530 (1990). "An impairment that manifests only some of those criteria, no matter how severely, does not qualify." Id.

To meet listing § 13.05(A)(2), a claimant must show that she has indolent non-Hodgkin's lymphoma requiring initiation of more than one anti-neoplastic treatment regimen within a period of 12 consecutive months. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 13.05(A)(2).[2] Anti-neoplastic therapy can include "surgery, radiation, chemotherapy, hormones, immunotherapy, or bone marrow or stem cell transplantation." Id. at § 113.00 (I)(l). The ALJ determined that Hayslett suffered from low-grade follicular small cell cleaved lymphocytic lymphoma, but found that the impairments associated with this condition did not meet or exceed the requirements of listing § 13.05(A)(2) because Hayslett had not received more than one anti-neoplastic treatment regimen within any 12-month period.

To reach this conclusion, the ALJ considered opinions from three medical experts: Dr. Gerald Schertz, Hayslett's treating oncologist, Dr. H.C. Alexander III, a non-examining medical consultant, and Dr. Lee Besen, a second non-examining medical consultant. All three experts agree mat Hayslett did not receive more than one anti-neoplastic treatment within a 12-month period. However, they differ in their ultimate conclusion about whether Hayslett satisfies the requirements of listing § 13.05(A)(2).

For example, Dr. Schertz noted in his records that Hayslett received therapy with Chlorambucil for a period of six months, beginning in April 20, 1998. Administrative Transcript, ECF No. 9, at 1177 [hereinafter "R."]. A second therapy with Rituximab was initiated three years later, beginning on August 6, 2001. Id.[3] In a letter to Hayslett's counsel describing these treatments, Dr. Schertz stated that "[i]t appears from this information mat [Hayslett] may not qualify under die Social Security listing 13.05." Id. Similarly, Dr. Alexander concluded that Hayslett did not meet or equal listing § 13.05(A)(2). As described in the ALJ's decision, Dr. Alexander stated:

The abdominal and pelvic CT scans from 02/05/97 through 10/10/2000 were read as showing no significant lymph node progression. Dr. Schertz's notes from 4/09/95 through 11/28/00 show brief lower abdominal discomfort but generally not constitutional symptoms or need for treatment. There is one six [-] month period when die claimant did receive chorambucil [sic] from 04/20/98 through 10/98 for enlarged nodes and some associated discomfort with a 'dramatic' decrease in die adenopathy. Omerwise she received no other treatment prior to December 31, 2000. Dr. Schertz usually signed out the ...

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