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Dawyot v. Berryhill

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

July 24, 2017

SCOTT MARSHALL THOMAS DAWYOT, Plaintiff,
v.
NANCY A. BERRYHILL, Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION

          Michael F. Urbanski, Chief 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, 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 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 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 (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 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").

         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 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. Id.

         II.[1]

         Dawyot 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.

         A.

         Dawyot 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 ...


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