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.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.
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
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. §
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 . . . .").
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.
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. Hammack objects to the magistrate
judge's findings as to each of her three arguments. The
court will address these objections in turn.
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 ...