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 (R&R)
on May 30, 2019, recommending that the 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 Kelly H. ("Kelly")
has filed objections to the report and this matter is now
ripe for the court's consideration.
Standard of Review of Magistrate Judge Decision
objection requirement set forth in Rule 72(b) of the Federal
Rules of Civil Procedure is designed to "train[ ] the
attention of both the district court and the court of appeals
upon only those issues that remain in dispute after the
magistrate judge has made findings and recommendations."
United States v. Midgette, 478 F.3d 616, 621 (4th
Cir. 2007) (citing Thomas v. Arn, 474 U.S. 140,
147-48 (1985)). An objecting patty must do so "with
sufficient specificity so as reasonably to alert the district
court of the true ground for the objection."
Id. at 622.
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.
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).
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. 4:08cv69, 2009
WL 9044111, at *2 (E.D. Va. May 6, 2009), afFd, 373 Fed.Appx.
346 (4th Cir.); 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), affd, 498 Fed.Appx. 268 (4th Cir. 2012).
See also Arn, 474 U.S. at 154 ("[T]he statute
does not require the judge to review an issue de
novo if no objections are filed. . . .").
arguments raised before the magistrate judge does not comply
with the requirement set forth in the Federal Rules of Civil
Procedure to file specific objections. Indeed, 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."
Howard [v. Sec'y of Health & Human Servs.].
932 F.2d [505, ]  509 [(6th Cir. 1991)].
539 F.Supp.2d at 846. 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.
Judicial Review of Social Security Determinations
not the province of a federal court to make administrative
disability decisions. Rather, judicial review of disability
cases is limited to determining whether substantial evidence
supports the Commissioner's conclusion that the plaintiff
failed to meet his burden of proving disability. See Hays
v. Sullivan. 907 F.2d 1453, 1456 (4th Or. 1990); see
also Laws v. Celebrezze, 368 F.2d 640, 642
(4th Cir. 1966). In so doing, the court may neither undertake
a de novo review of the Commissioner's decision
nor re-weigh the evidence of record. Hunter v.
Sullivan. 993 F.2d 31, 34 (4th Cir. 1992). Evidence is
substantial when, considering the record as a whole, it might
be deemed adequate to support a conclusion by a reasonable
mind, Richardson v. Perales. 402 U.S. 389, 401
(1971), or when it would be sufficient to refuse a directed
verdict in a jury trial. Smith v. Chater, 99 F.3d
635, 638 (4th Cir. 1996). Substantial evidence is not a
"large or considerable amount of evidence,"
Pierce v. Underwood, 487 U.S. 552, 565 (1988), but
is more than a mere scintilla and somewhat less than a
preponderance. Perales, 402 U.S. at 401;
Laws, 368 F.2d at 642. If the Commissioner's
decision is supported by substantial evidence, it must be
affirmed. 42 U.S.C. § 405(g); Perales. 402 U.S.
objections to the R&R, Kelly asserts that the magistrate
judge erred when he made the following findings: (1) that
substantial evidence supported the ALJ's determination
that Kelly's moderate impairment in concentrating,
persisting, and maintaining pace was adequately accounted for
in the RFC; (2) that the ALJ adequately explained why
plaintiffs mild limitations in interacting with others do not
result in any limitations in the RFC findings; (3) that the
ALJ's opinion regarding Kelly's physical RFC is
supported by substantial evidence; and (4) that the ALJ
properly assessed her subjective allegations of impairment.