United States District Court, E.D. Virginia, Norfolk Division
BRENDA L. LEE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
S. Davis Chief United States District Judge
Brenda L. Lee ("Plaintiff"), with the assistance of
counsel, brought this action seeking judicial review of the
final decision of the Acting Commissioner of the Social
denying her claims for disability benefits. The instant case
was referred to a United States Magistrate Judge, pursuant to
the provisions of 28 U.S.C. § 636(b)(1)(B) & (C) and
Rule 72(b) of the Federal Rules of Civil Procedure, as well
as Rule 72 of the Local Rules of this Court, for a Report and
September 6, 2018, Plaintiff filed a motion to remand
requesting that this case be remanded to the Social
Security-Administration for a new administrative hearing
based on the Supreme Court's recent decision in Lucia
v. SEC, 138 S.Ct. 2044 (2018). ECF No. 10. Additionally,
on September 24, 2018, in response to a briefing Order
entered by the Court, Plaintiff filed a motion for summary
judgment. ECF No. 14.
October 22, 2018, the parties submitted a "Consent
Motion to Stay Summary Judgment Briefing" pending this
Court's ruling on Plaintiff's motion to remand. ECF
No. 16. On October 30, 2018, the Court granted the consent
motion to stay. ECF No. 18.
December 20, 2018, the Magistrate Judge assigned to this case
issued an R&R recommending denial of Plaintiff's
motion to remand. ECF No. 20. By copy of the R&R, each
party was advised of the right to file written objections to
the findings and recommendations made by the Magistrate
Judge. On January 2, 2019, the Court received Plaintiff's
Objections to the R&R. ECF No. 21. On January 16, 2019,
the Commissioner filed a response to Plaintiff's
objections. ECF No. 23.
reviewed all relevant portions of the record, the Court notes
its initial concerns regarding the efficacy of
Plaintiff's objections to the R&R as she fails to
direct this Court to any specific errors in the Magistrate
Judge's legal analysis, instead merely reiterating her
prior arguments. Plaintiff's "objections"
largely repeat her prior contention that her appointments
clause challenge was "timely" even though it was
not raised during the administrative review process, yet she
fails to even discuss the Magistrate Judge's detailed
analysis explaining why such claim was untimely/forfeited,
including either the analysis in the R&R distinguishing
Sims v. Apfel, 530 U.S. 103 (2000) or the stated
reasons why the instant case is not the "rare case"
where a forfeited claim should nevertheless be addressed,
Freytag v. ConmVjr, 501 U.S. 868, 879 (1991). It
therefore appears that, as argued by the Commissioner, this
Court should simply adopt the R&R on a "clear
error" review standard. See Veney v. Astrue,
539 F.Supp.2d 841, 844-46 (W.D. Va. 2008) (rejecting the
plaintiff's "reformatting" of an earlier
summary judgment brief into an "objection" to the
R&R, noting the waste of judicial resources if the
district court is called upon to perform an identical task to
the magistrate judge (citing United States v.
Midgette, 478 F.3d 616, 622 (4th Cir. 2007))).
out of an abundance of caution, this Court has conducted a de
novo review of the objected to portions of the
R&R, and the Court hereby ADOPTS the
findings and recommendations set forth therein. Plaintiff's
Motion to Remand is therefore DENIED. ECF
No. 10. The parties are INSTRUCTED to follow
the briefing schedule established in the Court's Consent
Order dated October 30, 2018. ECF No. 18.
Clerk is requested to forward a copy of this Order to counsel
IS SO ORDERED.
 To the extent Plaintiff suggests in
her objections that she "raised her claim at the
earliest possible opportunity after Lucia was
decided," ECF No. 21, at 3-4, the Commissioner
effectively highlights the fact that Plaintiff, represented
by counsel, had ample notice of the ability to raise the ALJ
appointment issue during her administrative proceeding in
light of the existence of a Circuit split on this issue, as
well as the fact that the Lucia opinion is
self-described as an application of existing Supreme