United States District Court, W.D. Virginia, Roanoke Division
BARRY W. FREEMAN, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.
Michael F. Urbanski, United States District Judge.
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
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.
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).
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").
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.
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
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.
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
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 ...