United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski, Chief United States District Judge
social security disability appeal was referred to the
Honorable Robert S. Ballou, United States Magistrate Judge,
pursuant to 28 U, SC § 636(b)(1)(B), for proposed
findings of fact and a recommended disposition. The
magistrate judge filed a report and recommendation on June
14, 2017, 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 Scott Marshall Thomas Dawyot has filed
objections to the report, and this matter is now ripe for the
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 alett the district court of the true ground for
the objection." United States v. Midgette, 478
F.3d 616, 622 (4th Or.), cert denied, 127 S.Ct. 3032
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 Orpiano v. Johnson, 687 F.2d 44, 47
(4th Gir. 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),
aff'd, 373 F.App'x 346 (4th Or.), 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 Or. 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 saying 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 Or. 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 two principal arguments on summary judgment: 1) that
the Administrative Law Judge's (ALJ) residual functional
capacity (RFC) determination is not supported by substantial
evidence, because he did not conduct a function-by-function
analysis, specifically as regards Dawyot's fatigue and
ability to stoop, and 2) that the ALJ's credibility
findings are not supported by substantial evidence. The
magistrate judge considered these arguments, rejected them,
and found substantial evidence supports the ALJ's
determination that there are jobs that exist in significant
numbers in the national economy that Dawyot can perform.
Dawyot has objected to the magistrate judge's conclusions
as to each of these arguments.
specifically takes issue with the magistrate judge's
citation to page 25 of the administrative record in support
of his conclusion that the ALJ properly conducted a