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Freeman v. Colvin

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

September 13, 2016

BARRY W. FREEMAN, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION

          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 August 12, 2016, recommending that plaintiffs motion for summary judgment be denied, the Commissioner's motion for summary judgment be granted and the Commissioner's final decision be affirmed. Plaintiff Barry W. Freeman has filed objections to the report and this matter is now ripe for the court's consideration.

         I.

         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. 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.), 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-FDW-DSC, 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 Qrpiano 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. Comm'r of Soc. Sec, No. 4:08cv69, 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), aff'd, 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 [his] 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, ] ¶ 509 [(6th Cir. 1991)].

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. Id.

         II.[1]

         Freeman raised only one argument on summary judgment-that the Administrative Law Judge ("ALJ") improperly assessed his credibility. The magistrate judge rejected this argument, finding the ALJ's credibility determination is supported by substantial evidence in the record, and the ALJ's reasons for finding Freeman's complaints of disabling pain only partially credible were sufficiently explained. The magistrate judge declined Freeman's invitation to reweigh the evidence, holding the ALJ's credibility assessment was reasonable and supported by the factual findings.

         In his objections, Freeman criticizes the magistrate judge's report for merely "recit[ing] the same evidence relied upon [by] the ALJ in making his determination without examining whether the evidence truly supports the ALJ's findings." Pl.'s Obj., ECF No. 23, at 1. But as the magistrate judge noted, it is not the court's role to reweigh the record evidence. Rather, the court's role on judicial review is to determine whether there is substantial evidence to support the factual findings of the ALJ and whether they were reached through the correct legal standard. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). The issue before the court "is not whether [Freeman] is disabled, but whether the ALJ's finding that [he] is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law." Id. (citing Coffman v. Bowen. 829 F.2d 514, 517 (4th Cir. 1987)). In making that determination, the court must not "re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the Secretary" or his designee, the ALJ. Id.

         Notwithstanding Freeman's assertions to the contrary, the magistrate judge did not merely "adopt[ ] the ALJ's findings that because plaintiffs treatment was conservative in nature and he was able to live alone, use a computer, and drive to his doctor's office and the grocery store, plaintiff was not disabled." Pl.'s Obj., ECF No. 23, at l.[2] Rather, the magistrate judge walked through all of the evidence cited by the ALJ in support of his determination that Freeman's statements concerning the intensity, persistence and limiting effects of his pain are not entirely credible, and the magistrate judge correctly concluded that substantial evidence supports the ALJ's decision in that regard. Freeman's conservative treatment and ability to care for himself were only two facts considered by the ALJ in assessing Freeman's credibility. As the ALJ's decision explains in detail, the record is devoid of objective medical evidence to support the degree of limitation Freeman claims to experience as a result of his chronic back pain and arthralgia. The treatment notes do not reflect a worsening of Freeman's condition since the unfavorable decision on his prior application for benefits. In fact, Freeman's most recent medical ...


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