United States District Court, W.D. Virginia, Roanoke Division
TONEY L. OVERSTREET, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
Elizabeth K. Dillon United States District Judge.
Toney L. Overstreet brought this action for review of
defendant Nancy A. Berryhill's (the commissioner's)
final decision denying his claim for supplemental security
income (SSI) under the Social Security Act (the Act).
See 42 U.S.C. § 405(g) (2012) (authorizing a
district court to enter judgment “affirming, modifying,
or reversing the decision of the Commissioner of Social
Security”). The parties filed cross-motions for summary
judgment, which the court referred to United States
Magistrate Judge Robert S. Ballou for a report and
recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). In
his report, the magistrate judge concluded that substantial
evidence supported the commissioner's decision. (Dkt. No.
timely filed written objections (Dkt. No. 24), and the
commissioner filed a response (Dkt. No. 25). After de novo
review of the pertinent portions of the record, the report,
and the filings by the parties, in conjunction with
applicable law, the court agrees with, and will adopt in
full, the magistrate judge's recommendation. Accordingly,
defendant's motion for summary judgment will be granted,
plaintiff's motion for summary judgment will be denied,
and the court will affirm the commissioner's decision.
court adopts the recitation of facts and procedural
background as set forth in the report. (Report 2-3, Dkt. No.
Standard of Review
court's review of the administrative law judge's
(ALJ) underlying decision is limited. Specifically,
“[a] district court's primary function in reviewing
an administrative finding of no disability is to determine
whether the ALJ's decision was supported by substantial
evidence.” Coffman v. Bowen, 829 F.2d 514, 517
(4th Cir. 1987). Substantial evidence does not require a
“large or considerable amount of evidence, ”
Pierce v. Underwood, 487 U.S. 552, 564- 65 (1988);
rather, it requires “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S.
389, 401 (1971). This is “more than a mere scintilla of
evidence [and] somewhat less than a preponderance.”
Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir.
as here, a matter has been referred to a magistrate judge
pursuant to 28 U.S.C. § 636(b)(1), this court reviews de
novo the portions of the report to which a timely objection
has been made. Fed.R.Civ.P. 72(b)(3) (“The district
judge must determine de novo any part of the magistrate
judge's disposition that has been properly objected
to.”); United States v. Raddatz, 447 U.S. 667,
673-74 (1980) (finding that de novo review of the
magistrate's report and recommendation comports with due
order for an objection to trigger de novo review, it must be
made “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. 2007). See also Page v. Lee,
337 F.3d 411, 416 n.3 (4th Cir. 2003). Further, objections
must respond to a specific error in the report and
recommendation. See Orpiano v. Johnson, 687 F.2d 44,
47 (4th Cir. 1982). General or conclusory objections,
therefore, are not proper; they are in fact considered the
equivalent of a waiver. Id. Likewise, an objection
that merely repeats the arguments made in the briefs before
the magistrate judge is a general objection and is treated as
a failure to object. Moon v. BWX Techs, 742
F.Supp.2d 827, 829 (W.D. Va. 2010), aff'd, 498
F. App'x 268 (4th Cir. 2012) (citing Veney v.
Astrue, 539 F.Supp.2d 841, 844-46 (W.D. Va. 2008)). As
other courts have recognized in the social security context,
“[t]he Court may reject perfunctory or rehashed
objections to R & R's that amount to a second
opportunity to present the arguments already considered by
the Magistrate Judge.” Heffner v. Berryhill,
No. 2:16-cv-820, 2017 WL 3887155, at *3 (D.S.C. Sept. 6,
2017) (quoting Felton v. Colvin, No. 2:12-cv-558,
2014 WL 315773, at *7 (E.D. Va. Jan. 28, 2014)).
raises three objections to the report, and all three are
mostly the type of “rehashed objections” that the
Heffner and Felton courts concluded could
be rejected. See Id. That is, he made the same
arguments in his summary judgment briefing before the
magistrate judge. In his first objection, he contends that
the ALJ's discussion of his mental limitations did not
satisfy the requirements of SSR 96-8 and, in particular, that
the ALJ “failed to explain why plaintiff's moderate
limitations in concentration, persistence, or pace are
accommodated with a limitation to simple instructions and
simple tasks as required under Mascio v. Colvin, 780
F.3d 632, 638 (4th Cir. 2015).” (Objs. 1-2, Dkt. No.
24.) Although Overstreet asserts that the report does not
address this issue (id. at 1), he is incorrect. The
report devoted approximately eleven pages to this issue,
including a detailed narrative of the medical records that
related to limitations arising from his moderate impairment
in concentration, persistence, or pace. (Report 3-14.)
noted, the court finds that this objection is simply a
rehashing of his prior arguments before the magistrate judge
and could reject the objection on that basis alone.
(Compare Objs. 1-3 with Pl.'s Mem.
Supp. Mot. Summ. J. 10-14, Dkt. No. 15.) In any event, even
considering the objection de novo, the court concludes that
the magistrate judge's reasoning is correct and that the
ALJ's determination on this issue is supported by
second objection is that the ALJ erred in assessing his
physical RFC because he did not perform a
function-by-function analysis as required by SSR 96-8p.
(Objs. 3-4.) In particular, he argues that the ALJ did not
sufficiently “explain how he arrived at his conclusion
that plaintiff's severe impairments prevent him from
performing medium work but allow him to perform work at the
light exertional level.” (Id. at 3.) As to
this, the court finds it is largely a rehashing of prior
arguments before the magistrate judge. (Compare
Objs. 3-4 with Pl.'s Mem. Supp. Mot. Summ. J.
15-17.) Nonetheless, because Overstreet raises one alleged
error that is specific to the report, the court considers the
objection de novo. Specifically, as part of his second
objection, Overstreet asserts that the report “failed
to acknowledge” a possible inconsistency in the
ALJ's decision, i.e., that the ALJ ...