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Hammack v. Berryhill

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

September 21, 2017

SHARON LYNN HAMMACK, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting 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.S.C. § 636(b)(1)(B), for proposed findings of fact and a recommended disposition. The magistrate judge filed a report and recommendation on July 18, 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 Sharon Lynn Hammack has filed objections to the report, the Commissioner has responded, 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 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 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. 4:08 cv 69, 2009 WL 9044111, at *2 (E.D. Va. May 6, 2009), affd. 373 F.App'x 346 (4th Cir. 2010), cert, denied. 131 S.Ct. 610 (2010); see also 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."

539 F.Supp.2d at 846 (quoting Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991)). 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.

         II.[2]

         Hammack raised three principal arguments on summary judgment: (1) the Administrative Law Judge (ALJ) failed to properly evaluate her credibility and assess her complaints of fatigue; (2) the ALJ failed to properly evaluate the frequency with which she was required to "reach, handle, and finger" at her most recent relevant work; and (3) the ALJ failed to properly evaluate whether the elevation of her legs at her most recent relevant work constituted a "special condition" that would prevent her from obtaining employment in the national job market. The magistrate judge rejected these arguments and found substantial evidence supported the ALJ's determination that Hammack was capable of performing her past relevant work as computer programmer before August 6, 2014.[3] Hammack objects to the magistrate judge's findings as to each of her three arguments. The court will address these objections in turn.

         A.

         Hammack first appears to object to the magistrate judge's conclusion that substantial evidence supports the ALJ's decision that Hammack's fatigue "showed a disability onset date of August 6, 2014." Report & Recommendation, ECF No. 16, at 7; see Pl.'s Obj., ECF No. 17, at 1-2. Specifically, Hammack takes issue with the ALJ's use of an August 6, 2014 treating report to establish her disability onset date. In the treating report, Hammack reported that she "stayed in bed resting until noon or as late as 4 pm once a week." Report & Recommendation, ECF No. 16, at 7 (citing Administrative Record, hereinafter "R", at 695). Hammack, however; contends that [l]ogically, such a ...


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