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Harrell v. Saul

United States District Court, E.D. Virginia, Norfolk Division

July 31, 2019

ANDREW SAUL, Commissioner, Social Security Administration, Defendant.



         This matter is currently before the Court on Richard L. Harrell's ("Plaintiff) objections to the Magistrate Judge's Report and Recommendation ("R&R"). For the reasons set forth below, the R&R is ACCEPTED and ADOPTED. Plaintiffs Motion for Summary Judgment is DENIED, and Commissioner Andrew Saul's ("Commissioner") Motion for Summary Judgment is GRANTED.


         The Magistrate Judge's R&R thoroughly details the factual and procedural history of the case. See ECF No. 22 at 2-9. Since at least 2009, Plaintiff has experienced issues related to bipolar disorder, post-traumatic stress disorder ("PTSD"), and attention deficit hyperactive disorder ("ADHD"). Id. at 3. Plaintiff reportedly suffered from suicidal thoughts and attempted it at least twice. Id. at 3-4. On October 10, 2012, Plaintiff was seen at the Norfolk Crisis Stabilization Program and reported the same problems, as well as a history of high blood pressure ("HBP"). Id. at 4. Throughout 2015, Plaintiff received psychotherapy. Id. at 6. He went through a mental status exam and appeared overall normal, but did also manifest some impaired concentration, memory, and difficulty sleeping. Id. On August 24, 2015, a state agency psychologist found that Plaintiff could perform "simple tasks despite difficulty concentrating due to racing thoughts and periods of dissociation and being easily distracted." Id. at 7. On December 18, 2015, another state agency psychologist found that "Plaintiff could perform simple tasks with limited contact with coworkers and the public when considering [his] difficulty concentrating and racing thoughts." Id. Later, in 2016, Plaintiff presented in much better condition. Id.

         On January 14, 2015, Plaintiff filed an application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under the Social Security Act of 1935, Pub. L. No. 74-271, 49 Stat. 620 ("SSA"). Id. at 2. Plaintiff filed his application due to his PTSD, ADHD, bipolar disorder, hyperthyroidism, and HBP. Id. On September 2, 2015, Plaintiffs application was denied. Id. On December 22, 2015, it was denied again upon reconsideration. Id. Plaintiff requested a hearing before an administrative law judge ("ALJ"), and on May 18, 2017, an ALJ conducted such a hearing. Id. The ALJ denied Plaintiffs application on August 10, 2017. Id. Plaintiff requested the Appeals Council reconsider the decision, but that was denied on April 27, 2018. Id. At this point, the ALJ's decision became the final decision of the Commissioner. Id.

         On July 16, 2018, Plaintiff filed his first complaint for judicial review of the Commissioner's decision. ECF No. 3. On August 15, 2018, Plaintiff filed his First Amended Complaint. ECF No. 5. On October 11, 2018, the Commissioner filed her answer. ECF No. 11. On October 12, 2018, the case was referred to the Magistrate Judge. ECF No. 12. On October 15, 2018, the Magistrate Judge issued an order directing Plaintiff to file a motion for summary judgment and other responsive pleadings among the parties. ECF No. 13. On November 16, 2018, Plaintiff filed his motion for summary judgment. ECF No. 16. On December 14, 2018, the Commissioner filed her cross-motion for summary judgment. ECF No. 18. On December 28, 2018, Plaintiff filed a rebuttal brief. ECF No. 20. On April 2, 2019, he also filed a notice of supplemental authority. ECF No. 21. On May 24, 2019, the Magistrate Judge issued his R&R denying Plaintiffs motion and granting the Commissioner's motion. ECF No. 22. On June 7, 2019, Plaintiff filed his objections to the R&R. ECF No. 23. On June 21, 2019, the Commissioner filed her response to those objections. ECF No. 24.


         Under Rule 72(b)(3) of the Federal Rules of Civil Procedure, a district judge is required to "determine de novo any part of the magistrate judge's disposition that has been properly objected to." The de novo requirement means that a district court judge must give "fresh consideration" to the objected-to portions of the Magistrate Judge's report and recommendation. See Wilmer v. Cook, 774 F.2d 68, 73 (4th Cir. 1985); United States v. Raddatz, 447 U.S. 667, 675 (1980). "The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or recommit the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b)(3).

         A district court must review the relevant findings by the Magistrate Judge de novo when a party objects to the Magistrate Judge's report and recommendation. 28 U.S.C. § 636(b)(1). Objections made to the report must be made "with sufficient specificity so as reasonably to alert the district court of the true ground of the objection." United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007). Objections must also respond to specific errors in the report and recommendation because general or conclusory objections are not proper. See Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). General or conclusory objections are the equivalent of a waiver. Id. Moreover, "a mere restatement of the arguments raised in the summary judgment filings does not constitute an 'objection' for the purposes of district court review." Nichols v. Colvin, 100 F.Supp.3d 487, 497 (E.D. Va. 2015) (citing Abou-Hussein v. Mabus, No. 2:09-1998, 2010 WL 4340935, at *1 (D.S.C. Oct. 28, 2010)).


         A. Objection to Magistrate Judge's Finding of Waiver of Appointments Clause Argument

         Plaintiff first objects to the Magistrate Judge's finding that he had waived his Appointments Clause challenge. ECF No. 23 at 1-7. Plaintiff argues that the Magistrate Judge erred in finding that he waived this argument because he failed to raise this argument before the ALJ. Id. These arguments largely parallel the same arguments Plaintiff made in his motion for summary judgment. See ECF No. 17 at 12-21.

         The Court agrees with the Magistrate Judge's finding. Generally, non-jurisdictional constitutional challenges, such as the one in this case, are waived if they are not raised during the administrative proceeding. Jones Bros., Inc. v. Sec 'y of Labor, 898 F.3d 669, 676 (6th Cir. 2018).

         Plaintiff relies on Sims v. Apfel,530 U.S. 103 (2000), which held that a plaintiff need not raise an issue before the Appeals Council to preserve it during judicial review. Id. at 110. However, the Court in Sims specifically limited this holding to the Appeals Council and did not address the exhaustion question at the ALJ stage. Id. at 107. This stems from the fact that courts also have their own issue-exhaustion requirement and "[t]he basis for a judicially imposed issue-exhaustion requirement is an analogy to the rule that appellate courts will not consider arguments before trial courts." Id. at 108-09. This practice is largely based on the idea that "parties should have an opportunity to offer evidence on the general issues involved in the less formal proceedings before administrative agencies entrusted with the responsibility of fact finding." Hormel v. Helvering,312 U.S. 552, 556 (1941). Therefore, while a plaintiff may not need to raise an issue before the Appeals Council, it would make sense for ...

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